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High Court May Consider Legality of Detention
But Padilla was transferred to civilian custody to face terrorism charges before the Supreme Court could take up the military's power to detain him. The Justice Department is now trying to differentiate between holding Marri, a lawful resident, and U.S. citizens. But legal specialists say citizens and residents have the same due process rights -- a position the Bush administration itself took earlier in Marri's case -- so any high court ruling would apply to both.
In December 2002, Marri was charged in federal court with lying to the FBI and with using a false name and a stolen Social Security number to apply for bank accounts in Macomb, Ill., for a fictitious business. But on June 23, 2003, Bush ordered the attorney general to turn him over to the military.
The government says Marri trained at an al-Qaeda camp and met Osama bin Laden, and officials have said that the FBI came to think he was al-Qaeda's senior operative in the United States. His attorneys acknowledge that the allegations are serious but say they must be proved in a civilian court.
A divided U.S. Court of Appeals for the 4th Circuit ruled in July that the president had the power to detain Marri but that he could contest that detention in court. If the Supreme Court declines the case, lawyers say the government could continue to detain people in the Charleston brig because it lies in the 4th Circuit.
Jonathan Hafetz, an attorney with the American Civil Liberties Union who represents Marri, said his client's detention "is the broadest and most radical assertion of detention power since September 11. That the president can order the military to seize someone from their home, their business, from the streets and lock them up in jail potentially forever, without trial, goes against 230 years of American precedent and the basic idea that this country was founded on."
Bobby Chesney, a national security law specialist at Wake Forest University, said critics are overstating the potential risk because anyone held could file a court challenge. "The claim isn't that the president can detain whoever he wants, it's that he can detain al-Qaeda members," Chesney said. "This notion that the president is asserting some royal prerogative is silly."
Staff researcher Julie Tate contributed to this report.