WASHINGTON – The Supreme Court agreed yesterday to decide whether the president has the power to indefinitely detain alleged enemy combatants who are seized on U.S. soil.
In a challenge to the Bush administration's war-on-terror strategy, attorneys for Ali al-Marri say the Qatar native and former graduate student has been improperly held on nothing but the president's say-so for more than five years. They want al-Marri, who has been imprisoned in a Navy brig in South Carolina, 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,” al-Marri's attorney, Jonathan Hafetz, said in a legal filing.
Hafetz said the case 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 lawyer with the American Civil Liberties Union, which has been representing al-Marri.
The court's decision, issued without comment, means that at least four Supreme Court justices think that al-Marri has a case sufficient enough to merit a formal hearing. The hourlong oral arguments will likely take place next spring, after President 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 the Bush administration'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 al-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-Qaeda agents who, like (al-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-Qaeda attacks at home.”
Garre is a Bush appointee who will 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,” former FBI Director William Sessions and 11 former federal judges said in a legal filing.
Unlike other 21st-century detainees whose names have entered into Supreme Court history – such as Yemeni native Salim Hamdan – al-Marri has never been held at Guantanamo Bay. He is the only enemy combatant being held on U.S. soil, and his legal challenge won't affect how long the Guantanamo Bay prison will remain open.
Instead, the al-Marri case will test how much power the president has gained as a result of the post-Sept. 11 authorization of force passed by Congress.
FBI agents seized al-Marri at his Peoria, Ill., home on Dec. 12, 2001. The married father of five was a graduate student in computer science at Bradley University, where he had earned his bachelor's degree in 1991.
Investigators initially held al-Marri as a material witness in an investigation of the Sept. 11 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 al-Marri was an enemy combatant.
A laptop computer seized at al-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-Qaeda.
With Bush's declaration, al-Marri was removed from the U.S. criminal justice system and placed in solitary confinement at the Consolidated Naval Brig in South Carolina.
