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Supreme Court Agrees to Review Another Detention Case

As Atty. Gen. Michael Mukasey busily works to bury the abuses of the Bush administration, the Supreme Court may be getting ready to hand President George W. Bush yet another repudiation of his handling of detainees in the so-called global war on terror.

The high court decided today to review the case of Ali Saleh Kahlah al-Marri, who the federal government asserts was sent to the United States on a terror mission by Al Qaeda. Al-Marri was a legal U.S. resident when he was arrested in Peoria, Ill., in 2001 as a material witness to the Sept. 11 terrorist attacks. He is currently being held without charges as an enemy combatant at a Navy brig in South Carolina — the only such person being interned on U.S. soil. From Bloomberg:

A 5-4 majority on the 4th Circuit [Court of Appeals] said the allegations, if true, were a sufficient basis for the president to detain al- Marri as an enemy combatant. A separate 5-4 majority said al- Marri hadn’t been given a sufficient opportunity at the trial court level to challenge that designation.

The American Civil Liberties Union has taken up al-Marri’s defense. Jonathan Hafetz, staff attorney with the ACLU National Defense Project and counsel to al-Marri, made the following statement in an ACLU press release:

“We are pleased that the Supreme Court has accepted Mr. al-Marri’s case for review. The president has deviated from the principles on which the United States and its Constitution were founded: that individuals cannot be imprisoned for suspected wrongdoing without being charged with a crime and tried before a jury. We are confident that upon review, the court will strike down this radical — and unnecessary — departure from our nation’s most basic values.”

As Bloomberg reports, the case sets up an early opportunity for the incoming Obama administration to repudiate the Bush administration’s expansion of executive power:

President-elect Barack Obama’s legal team now must decide whether to follow President Bush’s lead and argue in favor of broad presidential power at the high court. The new administration could instead shift al-Marri to civilian custody for criminal prosecution or try to repatriate him to his native Qatar.

“They’ll have to decide fairly quickly whether they intend to defend the government’s position and the 4th Circuit’s decision,” said Stephen Vladeck, a professor who teaches national security law at American University in Washington.

TWI’s Daphne Eviatar has been following the case closely, and she has more of the details here.

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