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In the Courts

Ali Saleh Kahlah al-Marri

Ali Saleh Kahlah al-Marri, Qatari student

Ali Saleh Kahlah al-Marri, a Qatari student, was arrested in Peoria, Illinois in December, 2001 and detained in New York City as an alleged material witness in the 9/11 attacks. For the next 18 months, the case against Mr. Al-Marri was based on financial fraud and false statement charges, to which he plead not guilty. On June 23, 2003, just weeks before Mr. al-Marri's planned trial in the federal court, President Bush declared him an "enemy combatant" in the "war on terror" and ordered him transferred to military custody. The Justice Department asked the court to dismiss all charges against al-Marri, and civilian authorities in Peoria, Illinois, turned him over to the Defense Department for detention at the Naval Consolidated Brig in Charlestown, South Carolina. Mr. Al-Marri was held incommunicado at the Naval Brig for 17 months while being interrogated under allegedly coercive and abusive conditions. On July 8, 2004, Mr. Al-Marri's counsel filed a Petition for a Writ of Habeas Corpus, challenging Mr. Al-Marri's detention as an "enemy combatant."

In March 2005, the federal judge hearing the case ruled that although Mr. Al-Marri's detention was authorized by the Congressional Authorization for Use of Military Force, he had a constitutional right to challenge the government's assertions about the basis on which he is held. The proceedings were then transferred to a lower-level judge – a federal magistrate – to determine the process by which Mr. Al-Marri could challenge his detention.

On May 8, 2006, the magistrate judge recommended that the district judge dismiss Mr. Al-Marri's habeas petition. The magistrate judge based his decision on a hearsay statement from a U.S. government official that rested in part on information obtained from other detainees, including Khalid Sheikh Mohammed, who has been reportedly subject to torture.

On August 8, 2006, the district court adopted the magistrate judge's report and recommendations in full. Counsel for Mr. Al-Marri filed their appeal on November 13. The government then moved to dismiss the appeal, contending that the Military Commissions Act strips the court's jurisdiction over Mr. Al-Marri's petition and appeal. Mr. Al-Marri's counsel replied on December 12, asserting that Congress did not intend to deprive him of his right to habeas and that the elimination of jurisdiction over his habeas petition would violate the Suspension Clause, Due Process Clause and Equal Protection Clause. Oral arguments in the Fourth Circuit took place on January 31, 2007.

On June 11, 2007, the three-judge appeals panel unanimously found that the court had jurisdiction over Mr. Al-Marri's case, and held 2-1 that the Military Commissions Act did not strip a lawful resident alien of his right to habeas corpus, the President lacks the authority to detain Mr. Al-Marri as an "enemy combatant" without charge, and instructed the lower court to issue a writ of habeas corpus directing the Secretary of Defense to release Mr. Al-Marri from military custody.

On August 22, the U.S. Fourth Circuit of Appeals granted the government's petition for rehearing en banc and vacated the June decision. Oral arguments were held on October 31, 2007.

On July 15, 2008, in a split 5-4 decision the Fourth Circuit held that the Authorization for Use of Military Force (AUMF) grants the President the authority to imprison to Mr. Al-Marri as an enemy combatant if the government's allegations are true. Thus, under this holding anyone, including U.S. citizens and residents, who are picked up in the U.S. can be held as enemy combatants and denied core Constitutional protections. The government submitted a hearsay declaration by an intelligence official to support its allegation that Mr. Al-Marri was a member of al-Qaeda. Five justices, however, held that assuming Congress has authorized the President to detain Mr. Al-Marri, Mr. Al-Marri had not been afforded sufficient process to challenge his designation as an enemy combatant. The judgment of the district court was reversed and the case was remanded for an evidentiary proceeding to determine whether Mr. al-Marri is an enemy combatant. Judge William Traxler joined in on both issues to make majority on each part of the ruling, thus his opinion is binding.

On January 22, 2009, President Obama, through an executive order, directed the Justice Department to conduct a review of the legal and factual determination of Mr. Al-Marri's detention. On February 26, the Justice Department indicted Mr. Al-Marri in a federal district court just months prior to a scheduled April 2009 Supreme Court hearing that would call into question the constitutionality of his years held in detention without charge. Mr. Al-Marri was indicted in the U.S. District Court for the Central District of Illinois for "Conspiracy to Provide Material Support and Resources to a Foreign Terrorist Organization (al-Qaeda)," and subsequently pled guilty to these charges. Judge Michael M. Mihm sentenced him to fifteen years in prison, and Mr. Al-Marri's defense counsel argued that the eight years he had already been in custody should be taken into account in his sentencing. A subsequent October 29th plea agreement shortened Mr. Al-Marri's sentence to eight years.



Additional Commentary on the October 31 en banc rehearing


Briefs and Materials:
Habeas Case
U.S. Court of Appeals for the Fourth Circuit
HRF's Amicus Briefs
Re-filing in South Carolina
Conditions of Confinement Case
Seventh Circuit
Second Circuit (the following are external links)

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