Combatant detention issue skirted

By deciding Friday not to hear an accused al Qaeda operative’s challenge of his military detention, the Supreme Court spared the Obama administration the awkward situation of either defending Bush-era policies the president had denounced on the campaign trail or helping to put new limits on executive power.

The court decided the challenge became moot when prosecutors charged Ali al-Marri in a criminal indictment last week with providing material support to al Qaeda. Mr. al-Marri has been held without charges for nearly six years in a Navy brig in South Carolina.

The ruling clears the way for Mr. al-Marri to be transferred to a civilian prison. He is expected to appear in federal court in South Carolina next week.

The criminal charges represent a sea change from how the case was handled under President Bush, who declared Mr. al-Marri an enemy combatant and ordered him held at a military brig.

Mr. al-Marri’s lawyers challenged in court the president’s legal and constitutional authority to hold indefinitely someone who had been detained in the U.S. Mr. al-Marri had been picked up in Illinois and was the last designated enemy combatant held on American soil.

The Supreme Court had agreed to hear the case, and arguments had been scheduled for April. But the Justice Department sought to dismiss the case as moot in light of the criminal charges and President Obama’s reversal of the enemy-combatant status.

Dean Boyd, spokesman for the national security division of the Justice Department, said, “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.”

The White House declined to comment.

William Banks, a law professor who is the director of Syracuse University’s Institute for National Security and Counterterrorism, said Friday’s ruling is a victory for the Obama administration because it prevented the new president from having to take a position on Bush-era detention policies.

He noted that the new administration recently sided with its predecessor in a federal case in California regarding warrantless surveillance of Americans - another subject on which Mr. Obama the candidate was sometimes critical of the Bush administration, though he ended up voting in the Senate for a bill to authorize a version of the program.

“I don’t think they want to do that more than they have to,” Mr. Banks said.

He said choosing to charge Mr. al-Marri in civilian court will present difficulties for prosecutors related to classified evidence and possible torture issues. But he said the government also has a strong record of winning cases in which defendants are charged with providing material support to terrorists.

“I think the symbolic value of demonstrating you can deal with a hard case in our traditional courts is an important message,” Mr. Banks said. “This may be a precedent in terms of how to functionally manage the caseload” at Guantanamo Bay naval base in Cuba.

The Obama administration is working on closing the Guantanamo Bay prison and on deciding how to handle about 245 detainees there.

While the Obama team has distanced itself from Mr. Bush’s detention’s policy, Friday’s court decision means Mr. Obama can still employ such tactics, if he chooses.

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