- The Washington Times - Sunday, November 23, 2008


The Supreme Court could hand President-elect Barack Obama a delicate problem in the coming days: What to do with a Muslim accused of being an al Qaeda sleeper agent, 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, S.C., for nearly 5 1/2 years. He is challenging President Bush’s authority to subject a legal resident of the U.S. to indefinite military detention without being charged or tried.

The justices are expected to consider the al-Marri 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.

Mr. 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 Mr. Obama’s first months in office.

Mr. al-Marri’s fate will wind up in Mr. 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 the Bush team, despite Mr. Obama’s repeated criticism during the presidential campaign that Mr. Bush was too aggressive in asserting executive authority. Or Mr. 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 legal think tank that wants the court to hear the case and rule for Mr. al-Marri.

But Mr. Obama would have other, potentially more palatable, options that would almost certainly head off a hearing in the Supreme Court.

He could send Mr. 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 Mr. al-Marri, was convicted in a criminal trial in federal court in Miami.

Brad Berenson, a former Bush administration lawyer who went to law school with Mr. Obama at Harvard, said the new president is likely to discover that the al-Marri case is not easily resolved. Trying an al Qaeda suspect in civilian court could prove difficult, although the government has successfully prosecuted Richard Reid and Zacarias Moussaoui since the Sept. 11, 2001, attacks.

“Al-Marri is one of those cases where the rhetorical necessities of the campaign are likely to collide with the security necessities of governing,” Mr. Berenson said.

Mr. Obama’s transition team has little to say about the 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.”

Mr. al-Marri arrived in the U.S. with his wife and five children on Sept. 10, 2001, entering 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, Mr. Bush said Mr. al-Marri had vital information about terror plots, declared him an enemy combatant and ordered him transferred to military custody.

The government says Mr. al-Marri trained in al Qaeda camps, met with Osama bin Laden and Sept. 11 mastermind Khalid Shaikh 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.

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