Thursday, January 29, 2009

Indefinite Detention of Lawful U.S. Resident: Amici Weigh in on Al-Marri

A spate of new amicus briefs came in yesterday in Al-Marri v. Spagone, including the constitutional law professors' brief on which I posted here.  The case tests the President's authority to indefinitely detain a lawful U.S. resident in the United States, without charges, as an enemy combatant.  The ACLU collects the briefs here; the Brennan Center for Justice collects other litigation documents, including lower court filings, here.

Among the more interesting:

-Experts in the law of war argue that al-Marri was not captured in a theater of "armed conflict" and was not alleged to have engaged in "armed conflict," and that the laws of war, even if they apply, do not allow the executive to detain al-Marri.

-National security and counterterrorism experts argue that this kind of detention threatens to undermine national security.

-CATO, the Constitution Project, and the Rutherford Institute argue that al-Marri's detention is authorized by neither the AUMF nor inherent Article II authority.

-Civil War historians argue that al-Marri's case is indistinguishable from Ex Parte Milligan.

-Scholars of Ex Parte Quirin argue that Quirin has been undermined and should be limited to its facts or reconsidered.


Executive Authority, Recent Cases, War Powers | Permalink

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