New Column: Reactions to al-Marri Decision

My latest column for the Legal Intelligencer, written with my co-worker Jeremy, touches on the Fourth Circuit's recent decision granting habeas relief to Ali Saleh Kahlah al-Marri, a man who was long subjected to indefinite military detention without any due process, despite his lawful residence in the United States. It can be read here. Here is the intro:

"For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law." So begins the Fourth Circuit's June 11 decision, al-Marri v. Wright, the most recent legal setback for the Bush administration's anti-terrorism program.

In a 2-1 ruling, the court ruled that the government did not have the authority to detain indefinitely without process Ali Saleh Kahlah al-Marri, a Qatari national who had come to the United States on a student visa and who was living in Peoria, Ill.

Al-Marri lawfully entered the United States the day before the Sept. 11 attacks. Three months later, FBI agents arrested him as a material witness in the government's investigation of the attacks. Subsequently, he was charged with various criminal counts, including making false statements to the FBI.

Al-Marri's criminal trial was scheduled for July 20, 2003. Prior to his trial, the president ordered that the indictment against al-Marri be dismissed and that he be transferred to military custody. The president determined that al-Marri was an "enemy combatant" and that his detention was necessary to prevent him from aiding al-Qaeda.

In accordance with the order, al-Marri was transferred to a naval brig in South Carolina. He was detained by the military for nearly four years - without criminal charge or process. As the 4th Circuit explained: "He has been so held although the government has never alleged that he is a member of any nation's military, has fought alongside any nation's armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the executive believes that his military detention is proper."

For the first 16 months of al-Marri's military confinement, the government did not permit him any communication with the outside world, including his attorneys, his wife, or his children. He alleges that he was denied basic necessities, interrogated through measures creating extreme sensory deprivation, and threatened with violence.

Al-Marri petitioned for a writ of habeas corpus to secure his release from military imprisonment. In the petition, al-Marri claimed that the Fifth Amendment guarantees that no person living in this country can be deprived of liberty without due process of law. He maintained that even if he did commit the acts the government alleged, he is not a combatant but a civilian protected by the Constitution, and thus not subject to military detention.

The column goes on to highlite some of the recent blog commentary on the decision, including that of Glenn Greenwald, Andrew McCarthy, Anonymous Liberal, Orin Kerr, Ken Ashford, Marty Lederman, and SCOTUSblog.