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SCOTUS Dismisses Al-Marri Appeal

Now it’s really in President Obama’s court: This afternoon, the Supreme Court, as [predicted](Ali Saleh Kahlah al-Marri), dismissed the appeal of Ali Saleh Kahlah al-Marri, the last U.S. resident held as an “enemy combatant” in the United States without charge.

As I wrote yesterday, Al-Marri’s appeal isn’t really about the Supreme Court at all. It’s about this fundamental question: Why is the Obama administration clinging to the power to detain indefinitely a lawful U.S. resident on U.S. soil without charge? Al-Marri has been in a Navy Brig in South Carolina for more than seven years, since being arrested in Peioria, Illinois, where the 28-year-old computer science student was living with his wife and five children. He says he was repeatedly tortured in prison during interrogations.

Although President Obama last week agreed to transfer him from a military to a civilian prison and try him in federal court, as the Bush administration should have done from the start, the Obama administration has refused to say that it will not put him back in military custody should some new evidence surface, or that it won’t arrest and hold some other lawful resident without charge in prison for another seven years.

That sounds eerily like the executive powers John Yoo was espousing for George W. Bush. What’s going on here?

Back to the Supreme Court part of this. The court did, appropriately, vacate the court of appeals decision that had ruled that the President does have the power to detain indefinitely anyone he deems an “enemy combatant” without charge in the U.S. That doesn’t mean the President can’t do it, though — it just means there’s no federal court of appeals ruling saying that he can.

Here’s what Jonathan Hafetz, the lead ACLU lawyer handling Al-Marri’s case, had to say this afternoon:

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.’ Congress never granted the president that authority and the Constitution does not permit it. We trust that the Obama administration will not repeat the abuses of the Bush administration having now chosen to prosecute Mr. al-Marri in federal court rather than defend the Bush administration’s actions in this case.

Well, it would be easier to trust the Obama administration on that if it would just come out and say that it won’t actually exercise that extraordinary power in the future.

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