Nov 12th, 2008
Posted by Suzanne Ito, ACLU at 5:45pm	National Security

Meanwhile, Back in a South Carolina Navy Brig...

By now you might've heard that President-elect Barack Obama is devising plans to close Guantánamo Bay. Maybe you've even watched Robert Greenwald's video on our new Close Gitmo site, and signed the petition.

But back in South Carolina, Ali Saleh Kahlah al-Marri, a legal United States resident, continues to languish in the Navy brig that has been his home since June 2003. And any decision to close Guantánamo might not affect his situation at all, despite the fact that he's being held in circumstances nearly identical to those of Gitmo detainees. The background and facts of al-Marri's case are straightforward and simple; the litigation of his habeas corpus case, Al-Marri v. Pucciarelli, has been less so. In a nutshell, al-Marri lost in his district court petition challenging his detention, won his appeal (PDF), lost a second appeal (PDF), and now he’s asking the Supreme Court to review the case. On Monday, we filed our final brief before the high court decides whether to take the case.

Despite all this maneuvering, the central question in this case has remained the same: does the president have the authority to seize and indefinitely detain lawful U.S. residents (including American citizens) without charge or trial? The ACLU says no. And here's why:

1. Peoria is not Afghanistan: Al-Marri was arrested and dragged from his home in Peoria, Illinois, a far cry from the battlefields of Afghanistan where the U.S. military is engaged in ongoing combat operations. The government claims al-Marri's detention is just under Congress's September 2001 Authorization for the Use of Military Force (AUMF). But the AUMF allows for the detention of detainees captured on the battlefield, and despite the Bush administration's claims about a global “War on Terror,” Peoria is not a battlefield.
2. Detaining al-Marri in a military brig violates the Patriot Act: As we at the ACLU are all too aware, Congress expanded the scope of civilian law enforcement in this statute to encompass anti-terrorism activities in troubling ways (see JTTF, NSLs, and a bunch more abbreviations.) But what the Patriot Act did not do is authorize the President to use the military to detain people arrested on U.S. soil without charge. In fact, the Patriot Act explicitly states that if a person is arrested on suspicion of committing terrorist acts against the U.S., they're to be processed in the civilian justice system and charged within seven days of arrest. Al-Marri has been detained without charge for more than five years. Think about that.
3. Yet-Another-Violation-of-Posse-Comitatus: The Posse Comitatus Act very plainly prohibits the military from performing domestic law enforcement functions. Holding a person who's only been charged with domestic crimes in a military brig? Sounds like a violation to us.
4. It's also unlawful under the Non-Detention Act: The Non-Detention Act prohibits the military detention of citizens without an express statement from Congress. As far as we know, Congress has been pretty silent on that front.

So while we hope with every ounce of our collective beings that President-elect Obama will close Guantánamo, it doesn't end there. We're asking the Supreme Court to hear al-Marri's case. If the high court chooses to do so, we hope to prove to them, and the American public, that the President is not above the law.

Permalink |	National Security

Tags: Close Guantanamo

1. Whatsnext Says:
   Nov 13th, 2008 at 2:53pm

   Wow. How many things can one Administration fix?

   Is it fair to say that individuals should be cared for, and their problems addressed before say Constitutional problems or Policy problems such as Guantanamo?

   Who would have thought that their were/are enough AMERICANS who live and benefit in our "American Way of Life" to do so many things to the Other citizens living in America?

   How did we get into the "us and them" frame of thinking when the them are our fellow citizens?

   How did we get into "the end justifies the means" mode of government, when "all men are created equal" and we are "innocent until proven guilty"?

   Can we use fear as an excuse? Are we entitled or such cowards that we are willing to sacrifice our "sacred" principles and Constitutional Rights in our treatment against people that spell their name differently, or believe in a different religion because we suddenly are afraid?

   And what about ordinary US Citizens that look, sound and live just like you an me? The mechanisms that are used to "protect" us are the very ones that take away our rights.

   The worst statement I ever saw was on a bumper sticker about 10 years ago. It said, "I would rather be safe than free."

   That person and all of us got neither.

2. Daniel Alles Says:
   Nov 15th, 2008 at 11:15am

   According to the Bill of RIGHTS those individuals captured on the Battlefield or involved in terrorist attacks are not entitled to a trial by jury.AMENDMENT 5 No person shall be held to answer for a capital crime,unless on presentment or indictment of a grand jury,EXCEPT IN CASES ARISING IN LAND AND NAVAL FORCES,OR IN THE MILITIA,WHEN IN ACTUAL SERVICE IN TIME OF WAR OR PUBLIC DANGER.again those held at gitmo were captured on the battle field or were detained because they constituted an immenent public danger.your argument is weak.also if you can even read the GENEVA CONVENTION THE ILLEGAL COMBATANTS ARENT COVERED.so please refrain from harping on half truths and lies when using the media and refering to the constition.sabators spies those engaged in acts of sabatage and also captured out of uniform can be executed.

3. daniel alles Says:
   Nov 15th, 2008 at 1:41pm

   article 5 no person shall be held to answer for a capital,or infamous crime,unless on a presentment or indictment by a grand jury,EXCEPT IN CASES ARISING IN LAND OR NAVAL FORCES,OR MILITIA,WHEN IN ACTUAL SERVICE IN TIME OF WAR AND PUBLIC DANGER.Nor are those held at Gitmo covered under the geneva convention.as Spys sabators,enemy combatants captured out of uniform or engaged espionage are not covered by the geneva convention.

4. michael Says:
   Nov 15th, 2008 at 6:09pm

   It is a discrase to those who have been victimize by killers and rapist. And even more so to have a corrupt organization like the ACLU to try to band executions. So the victims are unable to see that justice well ever exist. You only force victims to put justice in there own hands. You are the biggest hippocrates: You are all for killing an innocent baby that has not lived long enough to commit a crime but your against killing a convicted criminal of rape, murder, or sexualy assaulting a child, that will live with it for the rest of his or her life. Organizations like the ACLU should and hopefully one day never exist.

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