October 25, 2008
Detention of Legal Residents in U.S.
A sharply divided Fourth Circuit ruled en banc this summer in Al-Marri v. Pucciarelli that the President had authority under the AUMF to detain a foreign citizen legally residing in the U.S. as an enemy combatant, but that the government failed to provide Al-Marri sufficient process to challenge his designation as an enemy combatant (thus violating principles in Hamdi).
This is a wonderful problem to supplement casebook materials on military detention: The several--and lengthy--opinions from Fourth Circuit judges in this novel case offer thorough discussions and competing understandings of both the canonical cases and the most recent cases in the war on terrorism. And the parties' arguments set out the constitutional positions. (The Brennan Center for Justice collects all the case materials here; thank you.) For the best of the parties' arguments, check out Al-Marri's original complaint, Al-Marri's Fourth Circuit brief, the government's opposition brief, and Al-Marri's cert. petition.
For a different take, you might check out a couple amicus briefs in support of cert. filed just this week. SCOTUSblog reports on amicus filings in the case here. (Thank you.) First, former Attorney General Janet Reno, former federal judges, and former U.S. Attorneys and DOJ lawyers argued that the U.S. criminal justice system is perfectly capable of dealing with those accused of plotting or engaging in terrorism. The institutional arguments in this brief well complement the constitutional issues at the Fourth Circuit. From the brief:
In this extraordinary case, the Fourth Circuit has held that the government has the power to arrest and imprison indefinitely anyone in the United States whom the government suspects of being a potential terrorist, without the normal procedural protections found in the criminal justice system. Most disturbing, the Fourth Circuit's decision applies fully to United States citizens; under the Fourth Circuit's rationale, American citizens may be imprisoned indefinitely merely upon the suspicion of being linked in some way to potential terrorism.
This unprecedented expansion of Executive authority within the borders of the United States is not only at odds with more than 200 years of history, but it is wholly unnecessary. The United States criminal justice system is well-equipped to prosecute those accused of planning or committing terrorist acts . . . .
In another amicus, con law professors argued that the Court needs to address unresolved issues of Executive authority in the war on terrorism. This, too, complements the constitutional issues at the Fourth Circuit, and, as law prof amicus briefs often do, provides an excellent review of the constitutional issues. From the brief:
In its few prior decisions related to the war on terrorism, the Court has not yet addressed these crucial questions of Executive authority and individual liberty, and its guidance on those issues is needed. Such guidance is necessary both to afford the Government guideposts as to the appropriate scope of its detention authority and to provide it with the option to seek additional legislation if needed. A decision of the Court is likewise essential for Petitioner to determine whether his indefinite detention without trial is warranted and to avoid prejudice should there ultimately be further proceedings on remand to the district court.
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