Background

Ali Saleh Kahlah al-Marri, a Qatari national, came lawfully to the United States with his wife and five children to pursue a master's degree at Bradley University in Peoria, Illinois, in September 2001. He was arrested by the FBI at his home that December and subsequently indicted for credit card fraud and false identification. Al-Marri asserted his innocence and prepared to contest the charges. But on June 23, 2003, on the eve of a hearing to suppress illegally seized evidence and less than a month before trial, the President declared al-Marri an al Qaeda agent and designated him an "enemy combatant" in the "war on terrorism." That same day, the military took custody of al-Marri and incarcerated him in the Navy brig in South Carolina, where he has been detained without charge ever since.

For the first sixteen months of his military detention, the government held al-Marri incommunicado and subjected him to a brutal interrogation regime. Al-Marri was held in total isolation, exposed to painful stress positions, shackled in a freezing cell for hours at a time, and threatened with violence and death. Although the government has never indicated how long it plans to hold al-Marri, who remains in virtual isolation at the brig, it has indicated that his detention may continue potentially for the rest of his life.

Court Proceedings

Al-Marri filed a petition for a writ of habeas corpus challenging his military detention without charge. After the district court dismissed the petition, a three judge panel of the U.S. Court of Appeals for the Fourth Circuit reversed, ruling that the "military detention of al-Marri must cease." Al-Marri v. Wright , 487 F.3d 160, 195 (4th Cir. 2007). The full Fourth Circuit, however, agreed to rehear the case. In July 2008, the en banc appeals court ruled by a 5-4 vote that, under the Authorization for Use of Military Force (AUMF), 115 Stat. 224, the President can detain individuals in the United States, including U.S. citizens, indefinitely without charge based on government assertions that they planned to commit terrorist activities. Al-Marri v. Pucciarelli , 534 F.3d 213 (4th Cir. 2008). Dissenting, Judge Diana Gribbon Motz declared that "in this nation, military control cannot subsume the constitutional rights of civilians." Id. at 251-52. She added, "[t]o sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them ‘enemy combatants,' . . . would effectively undermine all of the freedoms guaranteed by the Constitution." Id. at 252-53.

On September 19, Al-Marri filed a petition for certiorari seeking review of the Fourth Circuit's decision. The petition asserts that the Fourth Circuit made four grave errors on an issue of paramount national importance by vesting the executive with an unprecedented detention power that Congress never authorized and that the Constitution does not allow.

First , the Fourth Circuit disregarded the Supreme Court's repeated directive that authority to seize and detain individuals within the United States without charge, even if allowed under the Constitution, demands a clear statement from Congress. Instead, the Fourth Circuit construed the AUMF's silence to grant unprecedented authority for domestic military detention, rejecting centuries of legal tradition and fundamental constitutional safeguards secured through the criminal process.

Second , the Fourth Circuit ignored Congress' clear intent, manifested contemporaneous to the AUMF in the Patriot Act, that domestic terrorism suspects not be subject to prolonged or indefinite detention without charge, but be handled through the civilian criminal justice and immigration systems.

Third , the Fourth Circuit contradicted the Supreme Court's instruction that power to detain under the AUMF must be consistent with established law-of-war principles. Consequently, it stretched the definition of "enemy combatant," far beyond what the Court's decisions allow, imperiling the Constitution's most important safeguards and unsettling long-established understandings about the military's limited domestic role.

Finally , by upholding the military detention of a person who had been confined already for eighteen months in maximum security federal custody with no imminent prospect of release, the Fourth Circuit ignored Congress' explicit instruction in the AUMF that only "necessary and appropriate" military force may be used.

The Fourth Circuit's decision has profound repercussions. It grants the executive discretion to displace the constitutional protections of the criminal justice system, including the right to speedy presentment, confrontation, and trial by jury, merely by alleging a connection to possible terrorist activity. It also replaces settled and historic protections with confusion, creating three different definitions of "enemy combatant"—on top of the government's own various and shifting definitions of that term. In short, by authorizing a novel domestic military detention scheme with uncertain substantive parameters and ad hoc procedural rules, the Fourth Circuit decision casts a pall over the physical liberty of all persons living within this country.

The government's response to the petition is due in mid-October.