- The Washington Times - Saturday, March 7, 2009

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.

For that reason, the ACLU, which represents Mr. al-Marri, had urged the Supreme Court to hear its challenge to the indefinite detention of people picked up in the U.S.

“Congress never granted the president that authority, and the Constitution does not permit it,” Jonathan Hafetz, an attorney with the ACLU National Security Project, said in a statement. “We trust that the Obama administration will not repeat the abuses of the [George W.] Bush administration, having now chosen to prosecute Mr. al-Marri in federal court rather than defend the Bush administration’s actions in this case.”

Despite the court ordering the challenge dismissed, the ACLU did claim some measure of victory.

“While we would have preferred a Supreme Court ruling that U.S. citizens and lawful residents detained in the U.S. cannot be held in military custody as ‘enemy combatants’ without charges or trial, the Supreme Court nonetheless took an important step today by vacating a lower-court decision that had upheld the Bush administration’s authority to designate al-Marri as an ‘enemy combatant,’ ” Mr. Hafetz said.

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.

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