Al‐​Marri v. Spagone

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This case presents an important question concerning the scope of presidential or executive power. The Bush administration claims that once the president is satisfied that a person is a terrorist or is helping terrorists, the president can then issue an “enemy combatant” order to the Secretary of Defense — whereupon the suspect can then be seized and imprisoned in a military prison. The prisoner can then be held indefinitely without any trial in civilian court and denied access to family. Mr. Bush’s lawyers have made it clear that these executive powers can be used against Americans and lawful permanent residents. This brief argues that the president may not use such military powers against citizens and lawful permanent residents in the United States. If the president comes to the conclusion that Americans are engaged in a terrorist plot, he should have them arrested and present the incriminating evidence to a civilian court.