Friday, November 28, 2008

Al-Marri at the Supreme Court

The Supreme Court took no action on Al-Marri v. Pucciarelli at its conference on Tuesday.  We may get more information next week.  I've posted on this here, here, and here; the NYT editorialized in favor of cert. and in favor of al-Marri.

Al-Marri, a legal U.S. resident, was detained for over five years as an enemy combatant after his initial arrest on criminal charges.  A fractured full Fourth Circuit upheld his detention.

The case raises important issues that go well beyond al-Marri.  The NYT editorial says it well:

The [Fourth Circuit] made clear that its ruling upholding the president's power to detain enemy combatants applies equally to American citizens.  If the ruling stands, presidents would be able to throw out due process, habeas corpus and other basic constitutional and statutory rights for anyone they declared to have terrorist ties.

The case also raises (yet again) the broader question why the government can't simply try folks like al-Marri in Article III courts, where he was originally charged.  The administration says that Article III courts can't provide the necessary secrecy for its confidential evidence.  But even ignoring the well tested protections for confidential evidence in Article III courts--in camera review, e.g.--the evidence that we've seen in these cases has not been particularly revealing of anything, including the detainees' guilt.  This is becoming increasingly clear in the habeas cases; see my post here.

We'll continue to cover developments in al-Marri.

SDS

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Executive Authority, Recent Cases, War Powers | Permalink

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