Former U.S. Attorney General, Senior Justice Officials And Top Military Officers Urge Supreme Court To Review Indefinite Detention Case

October 23, 2008 12:00 am

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Respected Leaders Join ACLU Case Challenging Sweeping Presidential Authority That Deprives U.S. Residents Of Basic Constitutional Rights

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WASHINGTON – Former United States Attorney General Janet Reno, Former FBI Director William Sessions, Major General Antonio M. Taguba and other former government and military officials today are joining the American Civil Liberties Union in urging the U.S. Supreme Court to review the president’s authority to indefinitely imprison a legal resident of the U.S. without charge or trial. Several former top government and military leaders are signing on to friend-of-the-court briefs 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.

“This unprecedented expansion of executive authority within the borders of the United States is not only at odds with more than 200 years of history, but it is wholly unnecessary,” argue several former federal judges and former senior Justice Department officials in their brief. “The federal government is eminently capable of both protecting our nation’s security and safeguarding our proud tradition of civil liberties.”

Retired military officials also express concern about the heightened role of the military in detaining Americans on U.S. soil.

“The unlawful military detention of civilians undermines the necessary combination of trust and distance between military personnel and civilians,” say several retired U.S. generals and admirals in their brief. “The quality and character of the United States military would be undermined by a more extensive involvement in domestic law enforcement.”

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 July 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.

“The ACLU is asking the Court to reverse the lower court decision that gave the president sweeping power to deprive individuals in the United States of their most basic constitutional rights,” said Jonathan Hafetz, staff attorney with the ACLU National Security Project and lead attorney for al-Marri. “In America, no one – not even the president – is above the law and the government cannot simply lock people up forever without charge.”

Five friend-of-the-court briefs in support of the ACLU are being filed today by former U.S. attorney Janet Reno, former FBI director William Sessions and other former federal judges and top Justice Department officials; retired military officers Major General Antonio M. Taguba, Brigadier General David M. Brahms, Rear Admiral Donald J. Guter and Rear Admiral John D. Hutson; The Constitution Project and Rutherford Institute; several professors of legislation; and several professors of federal courts and constitutional law.

The briefs and more information about the case will be available later today at:

The ACLU’s certiorari petition for Supreme Court review is available online at:

Attorneys on the case are Hafetz, Steven R. Shapiro and Jameel Jaffer 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.; and Sidney S. Rosdeitcher of the law firm Paul, Weiss, Rifkind, Wharton & Garrison, LLP.

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