On The Front Lines
Rutherford Attorneys Ask U.S. Supreme Court to Ensure that the President's Power, Even in Wartime, Stems from Constitution or Congress
WASHINGTON, DC -- In a joint amicus brief filed with the U.S. Supreme Court, attorneys for The Rutherford Institute and the Constitution Project have asked the high court to determine whether the Executive Branch can authorize the indefinite military detention without trial of a legal U.S. resident. At issue in al-Marri v. Pucciarelli is whether the U.S. military has the authority to detain Ali Saleh Kahlah al-Marri. The Rutherford Institute, an international civil liberties organization, and the Constitution Project, an independent bipartisan think tank, both seek to promote and defend constitutional safeguards and civil liberties.
A copy of the amicus brief is available here.
"As our nation works to confront the challenges of maintaining security in an age of global terrorism, it is especially critical that we remain committed to safeguarding our constitutional rights and preserving the separation of powers," said John W. Whitehead, president of The Rutherford Institute. "To this end, it is imperative that we ensure that the President's power--even in wartime--stems either from an act of Congress or from the Constitution itself."
Al-Marri, a legal U.S. resident, was arrested at his home in Peoria, Illinois, and was transferred to military detention in South Carolina. He has been held for the past five years on the Bush administration's pronouncement that he is an "enemy combatant" and that the executive branch has inherent and statutory authority to detain civilians within the United States on that basis. In a five-to-four vote this July, the U.S. Court of Appeals for the Fourth Circuit narrowly overturned a three-judge panel that had held that al-Marri should either be freed or charged as a civilian. Instead, in a fractured opinion, the en banc panel upheld the President's authority to hold al-Marri in military detention without charge. A different five-to-four alignment of the judges concluded that al-Marri has the right to additional proceedings to determine whether he is an enemy combatant.
The brief filed by attorneys for The Rutherford Institute and the Constitution Project urges the Supreme Court to take the case on the grounds that the Executive Branch has consistently maneuvered to evade Supreme Court review of its broad claims of detention authority. The brief explains that the Court now has an opportunity to address the same expansive claim of domestic military detention authority raised in other cases and urges the Court to take the case and reject this unconstitutional claim. As the brief states, "Ordered liberty depends on the fundamental principle of separation of powers--i.e., that the Constitution inherently, or the Legislature explicitly, must authorize the Executive to act...This Court should review the claims of Executive power at issue here, which exceed those previously asserted and again test the constitutional limits of executive detention authority."
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