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Ali Saleh Kahlah al-Marri

The Center defended a Qatari national detained as an “enemy combatant” in the United States in his habeas corpus action that challenged the Executive’s claim to unchecked authority to indefinitely detain a legal reesident of the U.S. without any charge of wrongdoing. Mr. al-Marri was imprisoned without trial and without due process between 2003 and 2009.

Published: February 28, 2009

The Bren­nan Center for Justice is repres­ent­ing Ali Saleh Kahlah al-Marri in two cases involving the U.S. govern­ment. Al-Marri v. Spagone (formerly Al-Marri v. Pucciarelli), a habeas corpus action, chal­lenges the Exec­ut­ive’s claim to unchecked author­ity to indef­in­itely detain a legal resid­ent in the United States without any charge of wrong­do­ing.  In Al-Marri v. Gates, the Bren­nan Center is contest­ing Mr. al-Marri’s treat­ment and condi­tions of confine­ment since he was declared an “enemy combatant” in 2003.

Al-Marri v. Spagone case docu­ments | Al-Marri v. Gates case section 

Al-Marri in the News


Al-Marri v. Spagone

In Brief – Mr. al-Marri, a citizen of Qatar and legal U.S. resid­ent, was arres­ted in Peoria, Illinois, in 2001 as a mater­ial witness in the FBI’s invest­ig­a­tion of 9/11.  In 2002, he was charged with credit card fraud and other crim­inal offenses.  Shortly before his crim­inal trial commenced in June 2003, Pres­id­ent Bush declared him an “enemy combatant” and moved him to a Navy Brig in South Caro­lina, where the govern­ment has subjec­ted him to torture and other cruel treat­ment. Over five years later, Mr. al-Marri still remains in solit­ary confine­ment without charge.

Ques­tion Presen­ted – Does the Exec­ut­ive have legal author­ity to detain a legal resid­ent arres­ted in the United States without charge by declar­ing him an “enemy combatant?”  This case chal­lenged Pres­id­ent Bush’s asser­tion of unchecked exec­ut­ive deten­tion power over all indi­vidu­als in the United States.

Proced­ural History – Coun­sel for Mr. al-Marri filed for certi­or­ari review in the Supreme Court of the United States follow­ing the Forth Circuit Court en banc decision on July 15, 2008.  The U.S. Supreme Court gran­ted Mr. al-Marri certi­or­ari review on Decem­ber 5, 2008.  The Peti­tion­er’s brief was filed on Janu­ary 21, 2009. The follow­ing day, Preis­dent Obama issued an exec­ut­ive memor­andum to review the status of Mr. al-Marri’s deten­tion.  In an abrupt change in Febru­ary 2009, the Obama Depart­ment of Justice decided to bring charges against Mr. al-Marri in the crim­inal court system, thus render­ing the habeas corpus action moot. 


PillarsAddi­tional Detail – For many years, Ali Saleh Kahlah al-Marri was the only person detained as an “enemy combatant” in the United States. Mr. al-Marri, a citizen of Qatar and a legal U.S. resid­ent, was imprisoned without a trial and due process since he was arres­ted in Peoria, Illinois, in Decem­ber 2001. Mr. 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. Mr. 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, Pres­id­ent Bush signed a one-page order declar­ing Mr. 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, Mr. al-Marri was subjec­ted to torture and other cruel, inhu­man, and degrad­ing treat­ment. Until his trans­fer to the crim­inal justice system, he remained in solit­ary confine­ment at the Brig under severe restric­tions, not seeing his family during these six years, and speak­ing to them only a couple of times.

Although Mr. al-Marri was arres­ted at his home in the middle of the United States, the Exec­ut­ive 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 appeared to have been gained through torture. Further, Pres­id­ent Bush asser­ted that the Milit­ary Commis­sions Act of 2006 stripped the federal courts of their historic habeas corpus review over his chal­lenge to his deten­tion. Accord­ing to this argu­ment, any of the millions of immig­rants in the United States could be swept off the streets and locked in a milit­ary jail without access to the courts.

Mr. al-Marri’s case chal­lenged the pres­id­ent’s asser­tion of unchecked Exec­ut­ive deten­tion power over all indi­vidu­als in the United States. In the Bush 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, never author­ized such unchecked exec­ut­ive deten­tion author­ity and the Consti­tu­tion squarely prohib­its it.  A more detailed descrip­tion of Mr. al-Marri’s case and the import­ant issues it raises can be found in Mr. al-Marri’s brief on appeal.

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.

On June 11, 2007, in a two to one ruling by the Fourth Circuit Court of Appeals, the Court held that the Exec­ut­ive lacked legal author­ity to detain Mr. al-Marri without charge; all three judges ruled that Mr. al-Marri was entitled to tradi­tional habeas corpus protec­tions, giving 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. On July 15, 2008, the Fourth Cicuirt handed down its decision.

  In response to the Fourth Circuit’s decision, coun­sel for Mr. al-Marri filed a peti­tion for certi­or­ari in the Supreme Court on Septem­ber 19, 2008. The U.S. Supreme Court gran­ted Mr. al-Marri certi­or­ari review on Decem­ber 5, 2008. Briefs were filed on Janu­ary 21, 2009.  Numer­ous amici, or friends of the court, submit­ted briefs to the Supreme Court 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.

The follow­ing day, Preis­dent Obama issued an exec­ut­ive memor­andum to review the status of Mr. al-Marri’s deten­tion.  The Govern­ment’s reply brief will be due on March 23, 2009.  Oral argu­ments are sched­uled for April 27, 2009.  In an abrupt change in Febru­ary 2009, the Obama Depart­ment of Justice decided to bring charges against Mr. al-Marri in the crim­inal court system, thus render­ing the habeas corpus action moot. 


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., were co-coun­sel with the Bren­nan Center and ACLU.

Related Case Docu­ments

Supreme Court Briefs

Supreme Court Amicus Briefs

On the Merits:

In Support of Grant­ing Certi­or­ari:

Fourth Circuit En Banc

Fourth Circuit Decision and Judge­ment

Fourth Circuit 28J Filings

Fourth Circuit Party Briefs on Merits
Fourth Circuit Party Briefs on Juris­dic­tion

Fourth Circuit Amicus Briefs

Oppos­ing Motion to Dismiss:

On the Merits:

Fourth Circuit Joint Appendix


Al-Marri v. Gates

In Brief – Mr. al-Marri was placed in solit­ary confine­ment upon his trans­fer to the U.S. Naval Brig in South Caro­lina, in June 2003, and forced to endure pain­ful stress posi­tions, extreme sens­ory depriva­tion, as well as threats of viol­ence and death while being detained incom­mu­nic­ado for 16 months. In August 2005, Mr. al-Marri filed this lawsuit to chal­lenge his unlaw­ful and uncon­sti­tu­tional condi­tions of confine­ment and mistreat­ment.

Proced­ural History – In the course of this lawsuit, the govern­ment unlaw­fully destroyed video­tapes and other import­ant elec­tronic and paper records docu­ment­ing the milit­ary’s inter­rog­a­tion and treat­ment of Mr. al-Marri. To prevent futher destruc­tion of the 50+ inter­rog­a­tion record­ings and other evid­ence (see New York Times article on tape destruc­tion), attor­neys for Mr. al-Marri filed a motion with the Court to prevent further destruc­tion of evid­ence. That motion is still pending.

In March 2008, Mr. al-Marri reques­ted an interim order address­ing his prolonged isol­a­tion, which irre­vers­ibly harmed his mental health, deny­ing him mean­ing­ful contact with his family, and prevent­ing him from parti­cip­at­ing mean­ing­fully in his defense. In April 2008, a magis­trate judge recom­men­ded denial of the motion. Mr. al-Marri appealed to a district judge. In March 2009, the action was dismissed.


Related Case Docu­ments 

Condi­tions of Confine­ment Preser­va­tion Motion

Motion for Interim Relief from Prolonged Isol­a­tion and Other Unlaw­ful Condi­tions of Confine­ment

Motion to Dismiss Complaint

Complaint


Al-Marri in the News