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.