The failure to do so has left many to believe that there is an indifference to the real and perceived unfairness of the policy because of the population is disproportionately impacted by it. As a nation that prides itself on treating all who appear before our courts of law with fairness and equality, the time has come to address a vexing problem for those of us who are entrusted to administer the system and those who suffer the consequences of the policy.

the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366 (see Attachment 1), which took effect on October 17, 2006, removes federal court jurisdiction over pending and future habeas corpus actions and any other actions filed by or on behalf of detained aliens determined by the United States to be enemy combatants, such as petitioner-appellant al-Marri, except as provided in Section 1005(e)(2) and (e)(3) of the Detainee Treatment Act (DTA). In plain terms, the MCA removes this Court's jurisdiction (as well as the district court's) over al-Marri's habeas action. Accordingly, the Court should dismiss this appeal for lack of jurisdiction and remand the case to the district court with instructions to dismiss the petition for lack of jurisdiction.

the President has announced that he can sweep any of the millions of non-citizens off the streets of America and imprison them for life in a military jail without charge, court review, or due process. It is unprecedented, unlawful, and un-American.

First, as we have explained at length in our previous filings, petitioners, who are all aliens outside the United States, have no constitutional habeas rights to assert, and thus the elimination of the statutory right to seek habeas review does not implicate the Suspension Clause. Second, even if petitioners possessed constitutional habeas rights, given the review afforded, there is no suspension in this context because Congress has provided an adequate substitute. As set out in our prior briefs, the review afforded by Congress of the enemy combatant determinations by the Combatant Status Review Tribunals ("CSRTs") is greater than that afforded in habeas for alien enemies facing military criminal proceedings. ... Even outside of the military context, under traditional habeas review, "other than the question whether there was some evidence to support the order, the courts generally did not review the factual determinations made by the Executive." ... Petitioners' insistence that enemies captured during armed conflict, and detained by the military as enemy combatants have a right to de novo review of the ruling of the governing military tribunal is wholly unfounded, contrary to Supreme Court precedent, and would severely impair the military's ability to defend this country.

...the government's proposed substitutions, as currently proposed, will not provide the defendant with substantially the same ability to make his defense. The substitutions exclude in their entirety at least eleven events which collectively added significantly to the qualitative component of his defense. To credibly present his defense, the defendant must be provided the opportunity to bring to the jury's attention, though testimony or otherwise, the magnitude of his mental occupation with pressing matters involving national security. And this can only be accomplished if he can describe to the jury the activities that consumed his time and attention, and why those activities were of such importance to him. The proposed substitutions, which would exclude extremely significant items of classified information, goes too far and their collective omission would prevent the defendant from being able to show the jury the true nature of his defense. Thus, to approve the substitutions now proposed by the government would amount to a grave error of constitutional proportion.

This ruling does not give the defendant "free reign" over his testimony, Collins, 603 F. Supp. at 304; rather, it merely allows the defendant to testify and present evidence on those matters that this Court has deemed relevant, admissible, and whose omission would impair the defendant’s ability to present a meaningful defense. Nor should this ruling be interpreted as a proscription against the exclusion of any item of classified information deemed relevant and admissible in its entirety. This is not a numbers game where there must be a one-for-one substitution; rather, as discussed above, a balancing must be conducted.