Posted on 11/23/2008 8:28:53 AM PST by Hadean
WASHINGTON — The Supreme Court could hand President-elect Barack Obama a delicate problem in the coming days: what to do with a suspected al-Qaida sleeper agent who is the only person detained in this country as an enemy combatant.
Ali al-Marri has been held in virtual isolation in a Navy brig near Charleston for nearly 5½ years. He is challenging President Bush’s authority to subject a legal resident of the United States to indefinite military detention without being charged or tried.
The justices are expected to consider al-Marri’s case when they meet in private Tuesday. If they agree to hear arguments, over the Bush administration’s opposition, they could say so the same day.
Bush’s legal team has claimed authority for such detentions and has argued aggressively for it in court papers.
But the case would not be scheduled for argument until sometime in the late winter or early spring, during Obama’s first months in office.
Al-Marri’s fate will wind up in Obama’s hands in any event, but a decision by the court to hear his challenge would force the new president to confront the issue quickly.
In the event the dispute makes it as far as a court hearing, the new administration’s lawyers would have to argue the same basic position urged by Bush’s team, despite Obama’s repeated criticism during the presidential campaign that Bush was too aggressive in asserting executive authority.
Or Obama’s lawyers could reverse course in the middle of a complex legal dispute that would essentially have the new president arguing for limits on his powers.
Either way, “it will be a very tough position for the new administration,” said Sharon Bradford Reynolds, senior counsel at The Constitution Project, a bipartisan legal think tank that wants the court to hear the case and rule for al-Marri.
But Obama would have other, potentially more palatable, options that would almost certainly head off a hearing in the Supreme Court.
He could send al-Marri home to Qatar or transfer him back to civilian court to face criminal charges. The government followed the latter path in the case of U.S. citizen Jose Padilla rather than have the high court take up the matter. Padilla, who was held in the same brig as al-Marri, was convicted in a criminal trial in federal court in Miami.
Obama’s transition team has little to say about the case.
“We are not going to comment on cases pending before our courts,” said Brooke Anderson, chief national security spokeswoman for the transition.
Al-Marri arrived in the U.S. with his wife and five children Sept. 10, 2001 — one day before the terrorist attacks in New York and Washington. He entered the country on a student visa seeking a master’s degree in computer science from Bradley University, a small private school in Peoria, Ill.
He was arrested three months later as part of the FBI’s investigation of the Sept. 11 attacks. Prosecutors indicted him on charges of credit card fraud and lying to the FBI, traditional criminal charges.
But in June 2003, Bush said al-Marri had vital information about terror plots, declared him an enemy combatant and ordered him transferred to military custody.
The government says al-Marri trained in al-Qaida camps, met with Osama bin Laden and Sept. 11 mastermind Khalid Sheikh Mohammed. His laptop was filled with information about poisons, coded e-mail messages and lectures by bin Laden and others on the importance of martyrdom, the government says.
Regardless of the problems al-Marri’s case could pose for the new president, civil liberties groups want the high court to resolve the issue now. Without a Supreme Court ruling, a decision by the Richmond, Va.-based 4th U.S. Circuit Court of Appeals backing the president’s authority to detain terrorism suspects in the U.S. without charges would remain on the books.
“We don’t know what the Obama administration or any future administration would do,” said Jonathan Hafetz, a lawyer for the American Civil Liberties Union who is representing al-Marri.
nObama’s term as “president” will be adviser driven.
He hasn’t the skills or knowledge to take on this challenge, or much else, IMHO.
Is there a puppet master?
I know exactly what 0 will do. He will have this terrorist face charges in an American court at the taxpayers expense, and, then if found guilty, promptly pardon him.
Now this is the type of thing we can enjoy. Osama Obama promised to release these terrorists, nice storyline. ACLU anyone?
Oh please George W. Show the big O what political land mines are. Lots of em.
Uhhh.,... Umm///// Ahhh,,,,,,
That question is above his paygrade.
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