News Release ~ 03/06/2009

 Supreme Court Vacates Fourth Circuit Opinion on Indefinite Detention

Washington, DC­ (March 6, 2009) – The Supreme Court today vacated a Fourth Circuit ruling in the case of al-Marri v. Spagone (08-368) that upheld the president’s authority to indefinitely detain a legal U.S. resident as an “enemy combatant.” The decision is a post-mortem blow to the Bush administration’s claim of plenary executive power and a welcome victory for the basic constitutional guarantee that no person shall be deprived of liberty without due process of law. NACDL filed an amicus brief (pdf) on the merits, arguing that the indefinite detention of a lawful resident as an “enemy combatant” violates the Sixth Amendment and disrupts the criminal justice system and the courts.

The petitioner, Ali al-Marri, was arrested in 2001 while living in Peoria, Illinois, on a student visa. Mr. al-Marri was initially detained in civilian custody and charged with credit card fraud, but shortly before his trial was set to begin in 2003, President Bush secretly designated the Qatari native as an “enemy combatant” and ordered his transfer to a Navy brig near Charleston, South Carolina. In a deeply flawed 5-4 opinion, the Fourth Circuit affirmed the president’s power to indefinitely detain “enemy combatants” without charge or criminal proceedings even as it was unable to agree on a definition of an “enemy combatant.” The Supreme Court granted Mr. al-Marri’s petition for certiorari and had scheduled oral arguments for late April when President Obama’s Justice Department transferred Mr. al-Marri back to civilian custody in Illinois and indicted him on charges of providing material support to Al Qaeda.

Rather than simply dismiss al-Marri’s case as moot – and effectively preserve the Fourth Circuit opinion as good law – the Supreme Court chose to strike the decision from the law books. In a two sentence order issued this afternoon, the Court approved the Obama administration’s request to transfer al-Marri into federal court and vacated the Fourth Circuit’s opinion and remanded with instructions to dismiss the appeal as moot.

“Although the Court did not say how it would have ruled if President Obama had chosen to pursue President Bush’s position on the merits, it did not have to vacate the Fourth Circuit opinion, either” explained NACDL National Security Coordinator Michael Price. “In effect, the order was a rebuke of the Bush administration policy and a reaffirmation of the principle that there is no national security exception in the Sixth Amendment. NACDL applauds the Court’s decision and commends President Obama on rejecting indefinite detention.”

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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