Respected Military And Civilian Leaders Urge Supreme Court To Overturn Indefinite Detention Case

January 28, 2009

Briefs Filed In Support Of ACLU Case Challenging Presidential Authority To Hold Individuals Without Charge

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

WASHINGTON – Former United States Attorney General Nicholas Katzenbach, former FBI Director William Sessions and numerous former generals, admirals and diplomats joined the American Civil Liberties Union in urging the U.S. Supreme Court to reject the president's authority to indefinitely imprison a legal resident of the U.S. without charge or trial. These and other top military and civilian leaders are expected to file friend-of-the-court briefs today in the ACLU case of Ali Saleh Kahlah al-Marri, who has been detained in solitary confinement at a Navy brig in South Carolina since June 2003.

"Based on our professional experience in the diplomatic service of this country, American diplomatic credibility and effectiveness in many areas of international relations suffer from the widely shared perception that the U.S. has abandoned the rule of law. Indefinite detention without criminal charge or trial is, for most people, the essence of this abandonment," argue former diplomats in their brief. "Accordingly, a decision upholding our government's right to arrest and imprison anyone within its borders, without charge, will not only undercut our ability to convince dictatorial regimes to abandon similar practices, it will substantially undermine efforts to restore our international reputation and to obtain more cooperation from our allies in combating terrorism."

Al-Marri was first arrested in December 2001 at his home in Peoria, Illinois, where he was living with his wife and children. His case was scheduled to go to trial in June 2003, but was halted on the eve of trial when President Bush took the extraordinary step of designating al-Marri an "enemy combatant" and transferring him to a military brig in South Carolina. At the brig, al-Marri was detained incommunicado for 16 months and subjected to torture and other abuse. The government continues to hold al-Marri indefinitely as an "enemy combatant" based upon uncorroborated allegations that he has ties to al-Qaeda, although no evidence has been presented to sustain these allegations. He is the only remaining person detained as an "enemy combatant" in the United States.

In 2007, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled that the government cannot hold individuals arrested in this country in military detention without charge. However, in July 2008, the full appeals court overturned that ruling in a narrowly divided decision.

"We are honored to have the support of so many respected leaders in this effort to restore the rule of law," said Jonathan Hafetz, staff attorney with the ACLU National Security Project and lead attorney for al-Marri. "The outpouring of such widespread support among the nation's top civilian and military leaders shows that the tide has turned against the Bush administration's claim of a boundless and endless 'war on terror' – a claim that has served neither America's security nor its commitment to justice."

Friend-of-the-court briefs in support of the ACLU are expected to be filed today by former U.S. Attorney General Katzenbach, former FBI Director Sessions and other former federal judges and top Justice Department officials; retired military officers; diplomats; historians; religious groups; the Cato Institute, Constitution Project and Rutherford Institute; leading legal scholars and experts; and others.

The briefs as well as more information about the case will be available at: www.aclu.org/almarri

Attorneys on the case are Hafetz, Steven R. Shapiro, Jameel Jaffer and Hina Shamsi of the ACLU; Aziz Huq and Emily Berman of the Brennan Center for Justice at NYU School of Law; Andrew J. Savage, III of the law firm Savage & Savage, P.A.; John J. Gibbons and Lawrence S. Lustberg of the law firm Gibbons, P.C.; Sidney S. Rosdeitcher of the law firm Paul, Weiss, Rifkind, Wharton & Garrison, LLP; and Mark A. Berman of the law firm Hartmann Doherty Rosa Berman & Bulbulia.

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