[JURIST] A 2003 US Department of Justice Office of Legal Counsel memorandum [PDF text] demonstrates that the detention of Illinois resident and Qatari native Ali Saleh Kahlah al-Marri [Brennan Center case materials; NYT profile] "lacks legal basis" as the detention was based on now-discredited legal opinions, a lawyer for al-Marri argued in a letter [PDF text] submitted to the US Court of Appeals for the Fourth Circuit Tuesday. The now officially-repudiated memo written by the Deputy Assistant Attorney General John Yoo, declassified and released [JURIST report] last week, advised the US Department of Defense that military interrogators could employ a wide range of interrogation methods when questioning foreign detainees outside the United States without fear of criminal liability or constitutional sanction. In addition, the 2003 memo cited an unreleased 2001 memorandum [JURIST report], also since repudiated, asserting that the Fourth Amendment protection against unreasonable searches and seizures did not apply to "domestic military operations" conducted in pursuit of terrorism suspects."
Al-Marri's lawyer wrote:
The President relied on an an OLC opinion in designating al-Marri an "enemy combatant" in June 2003, merely three months after the Memo issued, ... and the government says that opinion formed part of the "extremely careful" Executive process that produced this designation....Al-Marri's defense noted that the 2003 memo "incorrectly asserts that the Fifth Amendment Due Process Clause does not restrict the President's detention and interrogation of suspected terrorists inside the United States ... and that the Fourth Amendment has 'no application to domestic military operations.'" The letter further said that "the memo ... also advocates detention for coercive interrogation. ... As the Memo underscores, al-Marri was impermissibly transferred to military custody after he had already been detained in civilian custody for 17 months precisely so that harsh interrogation methods could be employed against him."
The Memo - later repudiated by the Justice Department... - further demonstrates that al-Marri's detention lacks legal basis. ...
In sum, the President designated al-Marri an "enemy combatant" based upon erroneous legal analysis, and to uphold his detention is to endorse the result of an analysis that even the Justice Department has repudiated.
The appeals court is currently considering al-Marri's challenge to his designation as an enemy combatant [JURIST news archive]. In October 2007, the court held an en banc rehearing [JURIST report] of its earlier ruling [PDF text; JURIST report] that the military cannot seize and imprison civilians lawfully residing in the United States and detain them indefinitely as "enemy combatants." Al-Marri was arrested at his home in Peoria, Illinois by civilian authorities in 2001, and was indicted for alleged domestic crimes. In 2003, President George W. Bush declared him an enemy combatant [CNN report] and ordered the attorney general to transfer custody of al-Marri to the defense secretary, claiming inherent authority to hold him indefinitely. The Washington Post has more. SCOTUSblog has additional coverage.