Supreme Court takes up another challenge to Bush terror strategy

McClatchy NewspapersDecember 5, 2008 

WASHINGTON — The Supreme Court on Friday agreed to decide whether the president has the power to detain indefinitely an alleged enemy combatant who was seized on U.S. soil and now imprisoned in a Navy brig in South Carolina.

In another landmark challenge to the Bush administration's war-on-terror strategy, lawyers for Ali Saleh Kahlah al Marri say the Qatari native and former graduate student has been improperly held on nothing but the president's say-so for more than five years. They want him to be charged with a crime or released.

"Immediate review is further warranted by the fact that al Marri's continued isolation at the brig, now in its sixth year, is seriously and irreversibly harming his mental health," said Marri's attorney, Jonathan Hafetz, in a legal filing.

Hafetz added Friday that the case, al Marri v. Pucciarelli, should demonstrate that "individuals cannot be imprisoned for suspected wrongdoing without being charged with a crime and tried before a jury." Hafetz is a staff attorney with the American Civil Liberties Union, which has been representing Marri.

The court's decision, issued without comment, means that at least four Supreme Court justices think that Marri has a case that's sufficient enough to merit a formal hearing. The hour-long oral arguments will likely take place next spring, after President George W. Bush has left office.

So far, the Supreme Court has ruled on four war-on-terror cases, overturning the Bush administration's actions in three of them.

Between now and the arguments in the spring, President-elect Barack Obama and his legal advisers will have to decide how they might modify Bush's argument. Under Bush, administration lawyers have argued that the executive branch has broad powers in a time of war, even if Congress hasn't declared war.

In this case, the Bush administration's argument is that Marri represents a "continuing, present, and grave danger" to U.S. safety, and that as a suspected enemy combatant he can't be released without endangering the country.

"Congress intended to authorize detention of al Qaida agents who, like (Marri), come to this country to commit hostile or war-like acts," Solicitor General Gregory Garre argued in a legal filing. "And a contrary conclusion would severely undermine the military's ability to protect the nation against further al Qaida attacks at home."

Garre is a Bush appointee who'll be replaced by someone of Obama's choosing.

"Under the (administration's) rationale, American citizens may be imprisoned indefinitely merely upon suspicion of being linked in some way to potential terrorism," said former FBI Director William Sessions and 11 other former federal judges in a legal filing.

Unlike other 21st century detainees whose names have now entered into Supreme Court history, such as Yemeni native Salim Hamdan, Marri has never been held at Guantanamo Bay. He wasn't seized on the Iraq or Afghanistan battlefields, and his legal challenge won't affect how long the Guantanamo Bay prison will remain open.

Instead, the Marri case will test how much power the president gained as a result of the post-9/11 authorization of force passed by Congress.

"We hope that President-elect Obama will resoundingly reject the current administration's breathtaking claim that the United States may hold a civilian in military detention indefinitely," said Sharon Bradford Franklin, senior counsel at the Constitution Project, a Washington nonprofit group tackles a variety of controversial legal issues and seeks consensus among partisans.

FBI agents seized Marri at his Peoria, Ill., home on Dec. 12, 2001. The married father of five was a computer science graduate student at Bradley University, where he'd earned his bachelor's degree in 1991.

Investigators initially held Marri as a material witness in an investigation of the Sept. 11, 2001, terrorist attacks. Authorities eventually charged him with credit card fraud and identity theft. Those charges were later dropped. About a month before his July 2003 trial was set to begin, Bush issued a one-page declaration that Marri was an enemy combatant.

A laptop computer seized at Marri's house contained highly technical information about making cyanide gas, the FBI says. The computer also stored more than 1,000 credit card numbers, information about creating false identities and coded e-mail messages purportedly to a computer address associated with al Qaida.

"The evidence shows that, between 1996 and 1998, (Marri) received training at an al Qaida terrorist training camp in Afghanistan, where he learned about the use of poisons," Garre argued on Bush's behalf.

With Bush's declaration, Marri was removed from the U.S. criminal justice system and placed in solitary confinement at the Consolidated Naval Brig in South Carolina. The brig's top officer, Navy Cmdr. John Pucciarelli, is the other party named in the case, although the real defendant is the Bush administration.

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McClatchy Newspapers 2008

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