Court Puts Off Decision On Indefinite Detention
Justices: Indictment Made Issue Moot

Washington Post | March 7, 2009; Page A05
By Robert Barnes and Carrie Johnson

The Supreme Court yesterday vacated a lower court's ruling that the president has the right to indefinitely detain a legal U.S. resident as a terrorism suspect, and put off a decision on one of the most expansive legal claims of the Bush administration.

The justices did not rule on the merits of the decision but, instead, said it is moot now that the Obama administration has indicted suspected al-Qaeda agent Ali Saleh Kahlah al-Marri and said it would move him from a Navy brig to the federal court system.

The Supreme Court had been scheduled to hear Marri's case next month. He has been in prison for nearly six years.

The court's action relieves the new administration of having to either endorse or repudiate the Bush administration's assertion that the president may use the military to detain those legally in the country but accused of being enemy combatants without charging them with a crime.

While civil libertarians and human rights groups have pressed the Justice Department to renounce counterterrorism positions adopted in the Bush years, President Obama's team has indicated that it plans to move slowly on whether to discard those positions.

Attorney General Eric H. Holder Jr. has denounced waterboarding as "torture" and has indicated a determination to close the U.S. military prison at Guantanamo Bay, Cuba, but government lawyers have rejected invitations from federal judges to reverse course in several ongoing court disputes.

The new administration was not eager to take a stand on the legal issues surrounding Marri, 43, a Qatari national. Bush officials said Marri was part of a sleeper al-Qaeda cell intent on mass murder and disrupting the banking system, but they lacked the kind of evidence against him that a federal court would require.

Just before Marri was to be tried on fraud charges in 2003, President George W. Bush ordered him transferred to military custody, and he has been in the Navy brig in South Carolina since.

Last summer, the U.S. Court of Appeals for the 4th Circuit in Richmond agreed with the Bush administration that after the Sept. 11, 2001, attacks, Congress gave the president the power to indefinitely hold terrorism suspects under military guard, even if they were in the country legally.

But after the Supreme Court accepted Marri's case for review, the Justice Department decided last week to move Marri to the purview of the federal courts, and he was charged with conspiracy and providing material support to terrorists.

Marri's attorneys asked the justices to hear the case anyway, saying it was important for them to decide that neither the congressional resolution nor the Constitution gives the president such powers.

But the government said the issues were now hypothetical. To prove that it was not trying to "preserve its victory while evading review," it said it would not object to the court wiping out the 4th Circuit's decision.

That is what the court did yesterday, without elaboration or recorded dissent.

Marri's attorneys accepted the half-loaf.

Although they would have preferred a ruling reversing the lower court, "the Supreme Court nonetheless took an important step today" by vacating the decision, said Jonathan Hafetz, a staff lawyer with the American Civil Liberties Union's National Security Project and lead counsel in Marri's case.

"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," he said.

With Marri's indictment, there is now no one held as an enemy combatant in the United States. And despite the attention and court battles that the issue has garnered, only two others have been so designated since the 2001 attacks.

Jose Padilla, a U.S. citizen once accused of planning to detonate a dirty bomb in this country, was eventually moved to civilian court and convicted of lesser charges. Yaser Esam Hamdi, a U.S. citizen captured on the battlefield in Afghanistan, was held for almost three years by the military without charges. He was later released and sent to his native Saudi Arabia.

The Marri case is only one of the Bush administration war-on-terror court controversies that the new administration is now faced with either embracing or reversing, as civil libertarians remind Obama of some of his campaign rhetoric about what he called the excesses of his predecessor.

Still, the new team at Justice last month asserted a state secrets defense in a case that revolves around CIA rendition of terrorism suspects to countries where they allegedly faced torture.

Justice Department spokesman Matthew Miller said that "the attorney general has directed senior department officials to review all state secrets' cases to ensure the privilege is only invoked in legally appropriate circumstances."

Separately, government lawyers rebuffed a pointed request by U.S. District Judge Vaughn Walker in San Francisco to weigh in on whether an intelligence-gathering law that Congress passed last year gives the attorney general too much power to bestow retroactive legal immunity on telecommunications firms that helped authorities engage in warrantless surveillance on U.S. citizens.

A department spokesman said last week that the 2008 legislation is "the law of the land, and, as such, the Department of Justice defends it in court."

The department also is squaring off against the judge in another case, involving the al-Haramain Islamic Foundation, which alleges it was the target of illegal government electronic surveillance.

Walker has ordered the Justice Department, which is defending the National Security Agency in the case, to develop a plan for proceeding, but government lawyers are balking at the idea that sensitive materials could be shared with lawyers representing the charity.