- The Washington Times - Saturday, February 28, 2009

The criminal indictment against the final “enemy combatant” held on American soil marks a stunning departure from the Bush administration’s handling of terrorism cases, but it may also help preserve one of the Bush era’s most contentious policies.

A federal indictment unsealed Friday in Illinois charges Ali al-Marri with providing material support to al Qaeda. The charges come as the Supreme Court prepares to hear his challenge to Bush administration detention policies; Mr. al-Marri has been held for nearly six years in isolation in a Navy brig in South Carolina.

The Obama administration hopes that the criminal charges will end the Supreme Court case, which would allow Bush administration policies to continue. On Friday afternoon, the Justice Department’s solicitor general filed a motion to dismiss Mr. al-Marri’s pending litigation before the Supreme Court.

President Obama has ordered that Mr. al-Marri be transferred from the brig to a federal prison. The Justice Department said it will make the transfer after the Supreme Court rules on the Justice’s motion to dismiss the al-Marri case as moot.

Mr. al-Marri’s Supreme Court case challenges the legal and constitutional authority of the president to designate any person in the U.S. as an “enemy combatant” and order him held without charges by the military in the U.S.

Mr. Obama said in his order that his decision reverses Mr. Bush’s designation of Mr. al-Marri as an enemy combatant.

Mr. al-Marri’s lawyers say they will fight the Obama administration’s motion to dismiss and will demand a hearing on the case’s merits before the justices.

“Despite this indictment, the Obama administration has yet to renounce the government’s asserted authority to imprison legal residents and U.S. citizens without charge or trial,” said Jonathan Hafetz, an attorney with the American Civil Liberties Union’s National Security Project.

“It is important that the court hears Mr. al-Marri’s case and rejects, once and for all, the notion that any president has the sweeping authority to deprive individuals living in the United States of their most basic constitutional rights by designating them ‘enemy combatants,’ ” he said in a statement.

The court, which had been scheduled to hear arguments in the case April 27, told Mr. al-Marri’s lawyers to file legal responses by Tuesday.

Mr. al-Marri, a native of Qatar, arrived in the U.S. on Sept. 10, 2001, with his wife and five children. He entered the country legally and was working toward a master’s degree, attending computer science classes at Bradley University in Peoria, Ill., when he was arrested in December 2001.

Authorities initially accused him of credit card fraud and lying to investigators, charges stemming from the FBI’s investigation into the Sept. 11, 2001, terrorist attacks.

Investigators said Mr. al-Marri had met with Osama bin Laden and Sept. 11 mastermind Khalid Shaikh Mohammed while attending al Qaeda training camps. The FBI said it found incriminating information on his laptop computer, such as information about poisons, coded messages and lectures from bin Laden.

Two years later, the criminal charges were dropped, and the Bush administration declared him an “enemy combatant,” saying Mr. al-Marri had critical information about terrorism.

Mr. al-Marri was then taken to the Navy brig in South Carolina where, his lawyers contend, he was tortured and not allowed contact with anyone for 16 months.

On Jan. 22, according to the Justice Department, Mr. Obama ordered a Cabinet-level review of Mr. al-Marri’s case that included Attorney General Eric H. Holder Jr. and the secretaries of state, defense and homeland security, as well as the director of National Intelligence.

In the end, the team decided to pursue criminal charges, a strategy that the Bush administration had shunned.

“This indictment shows our resolve to protect the American people and prosecute alleged terrorists to the full extent of the law,” Mr. Holder said. “In this administration, we will hold accountable anyone who attempts to do harm to Americans, and we will do so in a manner consistent with our values.”

The indictment, which was handed up under seal Thursday, contains no specific accusations.

“We will introduce our evidence at trial and intend to prove our case there,” said Justice Department spokesman Dean Boyd. “We look forward to prosecuting this case in the criminal justice system and presenting the evidence for a jury to decide al-Marri’s guilt or innocence.”

Mr. al-Marri’s defense team also said little about the charges.

“We are pleased that after more than seven years of detention, Mr. al-Marri will finally have his day in court,” said Andrew Savage, another of Mr. al-Marri’s lawyers. “Mr. al-Marri is reviewing the charges and will respond in court,”

Mr. al-Marri is not the only enemy combatant held in the U.S. to have his case moved to civilian courts. U.S. citizen Jose Padilla was held in the same brig as Mr. al-Marri’s before being convicted of terrorism-related conspiracy charges and sentenced to more than 17 years in prison.

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