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Al-Marri case will determine limits to executive detention power

Jonathan Hafetz [attorney for Ali al-Marri and Litigation Director,Brennan Center Liberty & National Security Project]: "The al-Marri case raises critical issues in defining the limits of executive detention power. The government not claims the right to indefinitely detain without charge individuals arrested the United States but also asserts that non-citizens living in this country do not even have the right to challenge their detention by habeas corpus if designated an "enemy combatant" by the President. Under the government's view, the President can seize any immigrant off the streets of this country and subject him to prolonged incommunicado detention without any judicial review.

The government's position contradicts the laws and Constitution of the United States. Congress has not suspended habeas corpus, and, therefore, al-Marri unquestionably has a right to challenge his detention by way of the Great Writ, which has served as a bulwark of individual liberty for centuries. The President's claim he can imprison al-Marri without criminal charge indefinitely, if not for life, is also unfounded. Indeed, if this claim were accepted, it would eviscerate the line between civilian and military jurisdiction in the United States and sanction unprecedented and unchecked domestic detention power."

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