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13 June 2007

Victory in "Enemy Combatant" Case

13 June 2007 - The Fourth Circuit Court of Appeals has ordered the release from military custody of a civilian who has been held "without criminal charge or process" since 2003. Mayer, Brown, Rowe & Maw attorneys James Schroeder, Gary Isaac and Heather Lewis filed an amicus brief in the case, al-Marri v. Wright, on behalf of eight former senior Justice Department officials, including former U.S. Attorney General Janet Reno and our own Philip Lacovara, advocating against the government's indefinite detention as a putative "enemy combatant" of a legal alien arrested and held in the United States. Our amicus brief argued, and the Fourth Circuit held, that criminal law and process provides the Government ample means for charging, trying, and upon conviction, imprisoning, those accused of planning or committing acts of terrorism. Mayer, Brown attorneys also provided comments and drafting suggestions on the merits brief, and helped prepare the lead attorney for oral argument.

Ali Saleh Kahlah al-Marri, a Qatar national, was a legal alien when he was arrested at his home in Peoria, Illinois in December 2001 and indicted on federal criminal charges. Shortly before his criminal trial was scheduled to begin in 2003, the government designated al-Marri as an "enemy combatant," dismissing all the criminal charges against him with prejudice. Since then, al-Marri has been held in a military prison in South Carolina without any indication of when his detention would end.

Ruling that "the President claims power that far exceeds that granted him by the Constitution," the Fourth Circuit declared that "[t]he President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention." The Court further stated that "[t]o sanction such presidential authority to order the military to seize and indefinitely detain civilians * * * would have disastrous consequences for the Constitution - and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power - were a court to recognize it - that could lead all our laws 'to go unexecuted, and the government itself to go to pieces.' We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic."

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