WASHINGTON – The Supreme Court, which has not been afraid to take up thorny War on Terror cases, has agreed to hear another prickly challenge to the Bush Administration's war authorities.
This newest case questions the power of the president to label someone an "enemy combatant" and keep him locked up without charges on U.S. soil. Even though the Court says it will hear the case next spring, a change in policy from the incoming Obama administration could mean the parties will never actually make it into the courtroom.
Ali al-Marri has been locked up in the Navy's Charleston, S.C., brig since 2003. He was picked up shortly after 9/11 and is accused of being part of a second wave of Al Qaeda terrorists. Five years ago, President Bush declared al-Marri an "enemy combatant" and moved him from civilian custody in Peoria, Ill., into military hands. He is now the only enemy combatant held on American soil.
In June, the Richmond, Va., based 4th Circuit Court of Appeals ruled 5-4 that the president is within his powers to indefinitely hold al-Marri as an enemy combatant. Al-Marri was born in Qatar and is believed to have played an important role in financing Al Qaeda operations.
His lawyers deny the government's charges and claim al-Marri has "suffered inhumane, degrading, and physically and psychologically abusive treatment" during his five-plus years at the brig. They also say the lower court's ruling "has cast a pall over the physical liberty of all persons in the United States." Because al-Marri arrived here legally, the ruling is widely viewed as applicable to all American citizens.
At the time of his arrest, al-Marri was in Peoria with his wife and five children while enrolled in graduate school at Bradley University. He earned his bachelor's degree from that same school in 1991.
He is believed to have trained at an Al Qaeda camp in Afghanistan later on in the 1990s and was introduced to Usama Bin Laden by Khalid Sheikh Muhammad. It is further alleged that al-Marri was ordered to enter the United States in advance of the 9/11 attacks (he arrived on September 10, 2001) to act as a "sleeper agent" for a later attack.
The War on Terror has presented the Bush administration with numerous unique legal issues that will no doubt continue into the next presidency. President Bush has declared two other U.S. residents to be enemy combatants — essentially holding them indefinitely without an opportunity to challenge their detention in open court. In both cases, courts ruled against the administration. Jose Padilla was eventually convicted of conspiring with Al Qaeda and on January 22 was sentenced to 17 years in prison. Esam Hamdi was released to Saudi Arabia after the Supreme Court ruled in his favor.
The government had asked the High Court not to take al-Marri's case, calling his return to Bradley University nothing more than a cover for his "martyr mission on behalf of al Qaida." Solicitor General Gregory Garre argued that al-Marri's status as an enemy combatant falls within the bounds of prior Supreme Court decisions and equates him with the terrorists who struck on 9/11.
In the brief he wrote urging the Court to essentially uphold the 4th Circuit's ruling, Garre wrote al-Marri "falls within the heartland" of the Authorization for Use of Military Force (AUMF) Congress passed in the wake of the 2001 attacks. "Indeed, his circumstances are materially indistinguishable from those of Mohammed Atta and his cohorts, and holding that the AUMF did not authorize his detention is tantamount to saying that Congress did not intend for the AUMF to prevent another September 11."
The case has not been scheduled on the Court's calendar but is likely to be heard in March or April — after Barack Obama becomes president. What's not clear is if the official government position on the case will change with the change in administrations. Obama has made clear of his intention to pursue a different course on War on Terror policies. But it's not clear what those changes mean for this case.
"We are not going to comment on cases pending before our courts. President-elect Obama has repeatedly said that he believes that our current legal framework has failed to successfully and swiftly prosecute terrorists," said Brooke Anderson, chief national security spokeswoman for the transition. "He will make decisions about how to handle detainees as president when his national security and legal teams are in place," she told the Associated Press last month.
Obama could follow the Padilla model and formally present criminal charges against al-Marri. That would presumably make the case before the High Court moot and leave unanswered the core question presented by al-Marri's detention. However, the Obama administration could see some wisdom in its predecessor's policies and conclude the presidential powers claimed by Mr. Bush aren't so bad after all.