Sunday, December 7, 2008

Justices to Decide Legality of Indefinite Detention

Justices to Decide Legality of Indefinite Detention

Case of Qatari National, Held Without Formal Charges, Is Test of Executive Power Asserted by Bush

By Robert Barnes

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The Supreme Court said yesterday it will decide whether the president may order the indefinite detention of suspects living lawfully in the United States, one of the broadest claims of executive power the Bush administration has asserted in the nation's anti-terrorism efforts.

The court said it will review the case of Ali Saleh Kahlah al-Marri, a Qatari national studying in Illinois when he was seized in the aftermath of the Sept. 11, 2001, attacks and held in a Navy brig for more than five years without formal charges.

The case will present President-elect Barack Obama with an immediate decision on whether to endorse President Bush's aggressive use of executive power or to strike a new path in how the country confronts those suspected of planning additional al-Qaeda attacks.

The Supreme Court has ruled against the Bush administration four times on cases that involve the assertion of executive power with limited judicial review. Most recently, the court ruled 5 to 4 that terrorism suspects held at the naval base at Guantanamo Bay, Cuba, have the right to challenge their detention in federal court.

While Marri is the only person seized on U.S. soil and currently held as an enemy combatant -- the administration says he was part of a sleeper al-Qaeda cell intent on mass murder and disrupting the banking system -- the larger question of the president's powers might be the most significant the court has yet considered.

"The constitutional scope of the administration's unilateral detention powers," said Robert Chesney, a national security expert at the Wake Forest University law school, "is the question we've all been waiting for an answer to."

In a splintered decision this summer, the U.S. Court of Appeals for the 4th Circuit in Richmond ruled that the president had the power to detain Marri under the 2001 Authorization for Use of Military Force enacted by Congress after the Sept. 11 attacks. But a separate majority also said Marri had the right to challenge his designation as an enemy combatant before a district court in South Carolina, where he is currently being held.

The Bush administration had urged the Supreme Court to allow that process to go forward before taking Marri's case.

But lawyers for Marri had urged the justices to take the case now, saying the administration's reading of the military force authorization is "clearly not what Congress intended," in the words of Marri's lawyer, Jonathan Hafetz of the American Civil Liberties Union.

"The president has deviated from the principles on which the United States and its Constitution were founded: that individuals cannot be imprisoned for suspected wrongdoing without being charged with a crime and tried before a jury," he said in a statement.

But Solicitor General Gregory G. Garre, in a brief to the court, said it was "absurd" to assert that the president was doing anything other than what Congress had given him power to do to prevent "another September 11."

"All signs point to the conclusion that Congress intended to authorize detention of al Qaeda agents who, like petitioner, come to this country to commit hostile or war-like acts," Garre wrote. "And a contrary conclusion would severely undermine the military's ability to protect the nation against further al Qaeda attack at home."

The court said it would consider whether the law authorizes -- and if so, whether the Constitution allows -- "the seizure and indefinite military detention of a person lawfully residing in the United States, without criminal charge or trial" based on government assertions of al-Qaeda contacts.

Marri was a graduate student in Peoria, Ill., when he was arrested in December 2001. He was charged a year later with lying to the FBI and using a false name and a stolen Social Security number to apply for bank accounts in Macomb, Ill., for a fictitious business.

But just before his trial in June 2003, Bush ordered the attorney general to turn him over to the military, and he has been held in isolation in the Navy brig in Charleston, S.C., since.

The government says Marri trained at an al-Qaeda camp and met Osama bin Laden and Khalid Sheik Mohammed in the summer of 2001, and officials have said that the FBI came to think he was al-Qaeda's senior operative in the United States. A government affidavit filed with the court quoted a defense intelligence official saying that "Al-Marri offered to be an al Qaeda martyr."

Marri is the last of three designated enemy combatants held in the United States since 2001. His case is most similar to that of Jose Padilla, a U.S. citizen originally accused of attempting to explode a radiological "dirty bomb" in the United States. Padilla was transferred to civilian custody to face terrorism charges before the Supreme Court could take up the issue of the military's power to detain him.

Al-Marri v. Pucciarelli probably will be heard in March, after Obama takes office with his new team at the Justice Department. Although Obama has strongly opposed Bush on the claims of executive power he has made in fighting terrorism, his views on Marri and enemy combatants held inside the country are unclear. Obama has promised to abolish military commissions underway at Guantanamo Bay and has said that accused terrorists should be tried in civilian courts or military courts-martial.

A spokeswoman for Obama's national security team yesterday declined to comment. "President-elect Obama will make decisions about how to handle detainees as president when his full national security and legal teams are in place. There is one president at a time, and we intend to respect that," Brooke Anderson said.

Obama's options include backing the administration's current position of broad detention authority. He -- or the Bush administration -- could also short-circuit the court's examination by attempting to charge Marri in federal court or by deporting him to his native country.

But Chesney, the law professor, said it was unclear whether the statements relied upon by the government to detain Marri would be admissible as evidence in federal court.

Obama also, of course, has the option of reversing the administration's interpretation of the law once he takes office.

A prominent group of former judges and Justice Department lawyers, along with retired military officers, filed briefs backing Marri's position. They include Maj. Gen. Antonio M. Taguba, who led the Army's first official investigation into abuse at Abu Ghraib prison in Iraq.

The ruling supporting Bush is "a grave threat to the civil liberties of American citizens," said the brief submitted by the group, which also included former attorney general Janet Reno and former federal judge Abner Mikva, a longtime Obama mentor.

Additionally, liberal civil rights groups who have been hostile to Bush and friendly to Obama cheered the court's decision to take the case, and made it clear that they expect the Obama administration to see the policy differently.

"Conflicts like this one are among the best reasons to look forward to a new administration," said Kathryn Kolbert, president of the liberal People for the American Way.

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