Al-Marri v. Pucciarelli
Court Cases

– Ongoing

Pillars Ali Saleh Kahlah al-Marri is the only person detained as an “enemy combatant” in the United States. Al-Marri, a citizen of Qatar, was imprisoned without trial and without due process since he was arrested in Peoria, Illinois, in December 2001. Al-Marri came to the United States with his wife and five children to obtain a masters degree at Bradley University in Peoria, Illinois. After he was arrested, he was charged with credit card fraud and other criminal offenses. Al-Marri asserted his innocence and prepared to contest the charges at trial. But, in June 2003, shortly before his trial was scheduled to commence, and on the eve of a hearing to suppress illegally seized evidence, the President signed a one-page order declaring al-Marri an “enemy combatant” and directing his transfer to a Navy Brig in South Carolina, where he was held incommunicado and interrogated for more than a year. At the Brig, al-Marri was subjected to torture and other cruel, inhuman, and degrading treatment. He remains in solitary confinement at the Brig under severe restrictions and has not seen or spoken with his family in nearly five years.

Although al-Marri was arrested inside his home in the middle of the United States, the President claims the power to hold him indefinitely as an “enemy combatant” based upon second- and third-hand allegations that he is an “al Qaeda sleeper agent.” No evidence was presented to sustain these allegations, many of which appear to have been gained through torture. Further, the President asserted that the recently enacted Military Commissions Act of 2006 strips the federal courts of their historic habeas corpus review over his challenge to his detention. If so, any of the millions of immigrants in the United States can be swept off the streets and locked in a military jail without access to the courts.

On June 11, 2007, in a two to one ruling by the Fourth Circuit Court of Appeals, the Court held the President lacks legal authority to detain Al-Marri without charge; all three judges ruled that Al-Marri is entitled to traditional habeas corpus protections which give him the right to challenge his detainment in a U.S. Court.

On August 22, 2007, the Fourth Circuit Court of Appeals, granted the government's petition for rehearing en banc.  The case was argued by Jonathan Hafetz before the full Fourth Circuit on October 31, 2007, and is pending decision.

Al-Marri’s case challenged the President’s assertion of unchecked executive detention power over all individuals in the United States. In the administration’s view, the President has the authority to arrest and detain individuals without charge, without due process, and without meaningful judicial review. Congress, however, has not authorized such unchecked executive detention authority and the Constitution squarely prohibits it.

The Brennan Center has long argued that America’s criminal justice system can and should handle cases in which individuals are accused of terrorism. [see Secrecy Problem in Terrorism Trials] As the Brennan Center has explained, working within our established constitutional framework – a framework that dates to the Nation’s founding more than 200 years ago – is the best way to protect both liberty and national security.

A more detailed description of al-Marri’s case and the important issues it raises can be found in al-Marri’s brief on appeal. Numerous amici, or friends of the court, submitted briefs in support of al-Marri’s challenge, including former senior Justice Department officials, prominent legal experts from a variety of fields, leading human rights organizations, and top civil rights and immigrant groups.

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Lawrence S. Lustberg at Gibbons, P.C.,  Mark A. Berman at Hartmann Doherty Rosa & Berman, LLC, and Andrew J. Savage III of Savage & Savage, P.A., are co-counsel with the Brennan Center on the case.

Related Court Documents

Tags: Justice, Liberty & National Security, Detention & Habeas Corpus