When Ketanji Brown Jackson Represented the Cato Institute

In addition to having been an appellate judge, trial court judge, and public defender, Supreme Court nominee Ketanji Brown Jackson spent some time in private practice at Morrison & Foster. She was pro bono like many other lawyers and devoted some time to it. Her most recent project was to serve as counsel for record in an amicus brief. Al-Marri v. SpagoneThis case concerns the power of the military to arrest individuals legally present in the country. Notable is the fact that this brief was submitted for the Constitutional Project, Rutherford Institute and Cato Institute.

According to the brief, Ali Saleh Kahlah AlmArri’s arrest by the military was illegal. The summary is reproduced below.

It claimed that the government was responsible for all of this, but it is not. en bancFourth Circuit incorrectly concluded that the President is authorized to use military force to arrest, without trial or charge, legal citizens who are in the United States.
Engaged in terrorist-related activities

There is no such authority—not in any Act of Congress nor in the Constitution. Therefore, the claim of the government and the below ruling cannot be supported.


The Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 107-40, 112 Stat. The Court does not accept it as a clear statement rule. This requires Congress to explicitly authorize the Executive to make use of the military detention authority in place of civil prosecution within domestic sphere. The Court never inferred that such authorization was derived from Congress’s general declarations regarding military force.

The Court has reached its conclusion Hamdi v. Rumsfeld542 U.S. 512, 518 (2004). That the AUMF explicitly authorizes military detentions is not applicable to this case as it was decided in HamdiThis applies to only the military detention for persons held prisoner on foreign battlefields, within a combat zone. HamdiThis does not apply to individuals lawfully present in the United States and far away from the foreign front.

This is the USA Patriot Act of 2001 (Pub. L. No. 107-56, 115 Stat. 272, gave the Executive the authority to hold terrorist suspects who were present in the United States. Congress was able to consider the Patriot Act concurrently with the AUMF, and it was enacted a few short weeks later. It does not allow Executive detention by the United States military for purposes of trial or charge.

It would be unnecessary for Congress to enact the Patriot Act’s more precise domestic detention provisions if the government used the AUMF to authorize the detention that it is seeking in this instance. This is evident from the Patriot Act’s legislative history. The Patriot Act was intended to provide this, and not the AUMF.
The president has detention authority over terrorist suspects while they are legally in the United States. It also demonstrates that Congress considered—and declined to grant—the military detention power that the government now claims.


The government asserts that without explicit congressional authorization, it is the Executive’s inherent right under Article II of Constitution to use military force to arrest lawful residents of the United States. However, the Commander-inChief Clause does not give such authority. According to the Constitution, military power falls under the shared responsibility of the Legislature and Executive. The President has broad powers to wage war abroad as Commander in Chief, but this requires authorization from Congress.

It is the Framers desire to prevent any potential threats to democracy that could be posed from standing armies under the control of a potentially dictatorial Executive. The Constitution’s structure also confirms the necessity for Congress to give President the explicit authority to use the military for detention and trial of lawful persons in the United States.


The Executive could use military force to arrest lawful citizens of the United States without charging or trial. This would allow for manipulation of civilian justice systems. Such manipulation threatens the constitutionally protected liberty of every person who is lawfully in the United States, including American  citizens.