Gibbons Foundation Prevails In Case Against Alleged Enemy Combatant

Sunday, July 1, 2007 - 01:00

On June 11, the United States Court of Appeals for the Fourth Circuit published its opinion in Ali Saleh Kahlah Al-Marri vs. Commander S.L. Wright, in which the Gibbons Fellowship prevailed in upholding the constitutional law of the country.

The Fellowship has long represented Mr. Al-Marri, one of only three alleged "enemy combatants" arrested in the United States, who was, on the eve of his criminal trial, taken into custody by the military. For more than 3 years, Mr. Al-Marri was held by the government and neither charged nor provided with any process. This case presented cutting-edge issues regarding the treatment of enemy combatants, and has been ongoing in various venues and courts over the past few years.

"We have been involved with this case for many years, and are glad to see that Mr. Al-Marri is finally receiving the due process to which he is entitled," said Lawrence S. Lustberg, director of the Gibbons Fellowship and lead attorney for this case. "This is just one example of the many people who are being held in similar situations without hopes for a fair and just trial."

Other Gibbons attorneys involved with this case include Jonathan L. Hafetz, a former Gibbons Fellow who is now working for the Brennan Center for Justice at the New York University School of Law, and Mark Berman.

As quoted from the decision, Diana Gribbon Motz, Circuit Judge, said: "The Government ... maintains that the President has both statutory and inherent constitutional authority to subject al-Marri to indefinite military detention and, in any event, that a new statute - enacted years after al-Marri's seizure - strips federal courts of jurisdiction even to consider this habeas petition. We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his petition. Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government's allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri.... This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians - let alone imprison them indefinitely."