January 28, 2009
Law Professors File Amicus Brief in Al-Marri
A group of leading constitutional law professors filed an amicus brief today in Al-Marri v. Spagone, the case testing the President's authority to indefinitely detain, without trial, a lawful U.S. resident as an enemy combatant within the United States. I posted on the case most recently here. Many thanks to SCOTUSblog for posting the brief.
The brief--filed by Howe & Russell and the Harvard Supreme Court Litigation Clinic--argues that this constitutes a "significant expansion of traditional executive detention powers," but that Court need not address that constitutional issue. Instead, the Court should adopt of rule of clear Congressional authorization for such detention (which the AUMF doesn't provide). If Congress specifically authorizes this kind of detention, then the Court might later rule on the constitutional question.
Accordingly, the common-law courts that developed the concept of the enemy combatant as part of the law of war (which, in turn, influences the constitutional understanding of the scope of the government's detention power) simply did not have occasion to "confront cases with close parallels to this one." Boumediene. The Court is thus left with the question whether suspects in the "war on terror" are sufficiently similar to combatants in a traditional war (e.g., Quirin and Hamdi)--and sufficiently dissimilar to individuals with a recognized right to the protections of the criminal justice system (e.g., Milligan, McVeigh, and members of the Mafia)--to justify treating them under the rules developed for traditional wars.
As discussed below, there is no need for this Court to resolve that question in this case, and amici take no position on it.
This approach is conservative but prudent, if the case goes to the Court--i.e., if the administration doesn't moot it by moving al-Marri to a regular federal prison and charge him in regular Article III courts. This is a big if: The administration has already signaled its intent to change the way the government deals with Guantanamo detainees, including trying some (or all) in Article III courts. It could--I've argued should--make this same move with al-Marri. But if it doesn't, and if the case proceeds, the professors' position punts the issue back to the political branches, which now are unlikely to specifically sanction this kind of detention. This could help shut down indefinite detentions of lawful U.S. citizens in the U.S. over the long haul, but it leaves al-Marri in limbo until Congress moves (or doesn't) on the issue.
But given the administration's signal with Guantanamo detainees (to move at least some of them to the regular Article III system), the better course would have been to argue that al-Marri's detention is categorically unconstitutional, with or without Congressional authorization. This approach would have preserved this much stronger claim in the record, even as the case goes moot (assuming that the administration moots it). If it doesn't go moot, the stronger claim is a signal to Congress.
Politics aside, this is a must-read and a wonderful supplement for your classes on wartime authorities. Take a look.
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