Justices to Decide Legality of Indefinite Detention

Ali Saleh Kahlah al-Marri has been held without formal charges in a Navy brig for more than five years.
Ali Saleh Kahlah al-Marri has been held without formal charges in a Navy brig for more than five years. (The Journal Star Via Associated Press)
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By Robert Barnes
Washington Post Staff Writer
Saturday, December 6, 2008

The Supreme Court said yesterday it will decide whether the president may order the indefinite detention of suspects living lawfully in the United States, one of the broadest claims of executive power the Bush administration has asserted in the nation's anti-terrorism efforts.

The court said it will review the case of Ali Saleh Kahlah al-Marri, a Qatari national studying in Illinois when he was seized in the aftermath of the Sept. 11, 2001, attacks and held in a Navy brig for more than five years without formal charges.

The case will present President-elect Barack Obama with an immediate decision on whether to endorse President Bush's aggressive use of executive power or to strike a new path in how the country confronts those suspected of planning additional al-Qaeda attacks.

The Supreme Court has ruled against the Bush administration four times on cases that involve the assertion of executive power with limited judicial review. Most recently, the court ruled 5 to 4 that terrorism suspects held at the naval base at Guantanamo Bay, Cuba, have the right to challenge their detention in federal court.

While Marri is the only person seized on U.S. soil and currently held as an enemy combatant -- the administration says he was part of a sleeper al-Qaeda cell intent on mass murder and disrupting the banking system -- the larger question of the president's powers might be the most significant the court has yet considered.

"The constitutional scope of the administration's unilateral detention powers," said Robert Chesney, a national security expert at the Wake Forest University law school, "is the question we've all been waiting for an answer to."

In a splintered decision this summer, the U.S. Court of Appeals for the 4th Circuit in Richmond ruled that the president had the power to detain Marri under the 2001 Authorization for Use of Military Force enacted by Congress after the Sept. 11 attacks. But a separate majority also said Marri had the right to challenge his designation as an enemy combatant before a district court in South Carolina, where he is currently being held.

The Bush administration had urged the Supreme Court to allow that process to go forward before taking Marri's case.

But lawyers for Marri had urged the justices to take the case now, saying the administration's reading of the military force authorization is "clearly not what Congress intended," in the words of Marri's lawyer, Jonathan Hafetz of the American Civil Liberties Union.

"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," he said in a statement.

But Solicitor General Gregory G. Garre, in a brief to the court, said it was "absurd" to assert that the president was doing anything other than what Congress had given him power to do to prevent "another September 11."

"All signs point to the conclusion that Congress intended to authorize detention of al Qaeda agents who, like petitioner, come to this country to commit hostile or war-like acts," Garre wrote. "And a contrary conclusion would severely undermine the military's ability to protect the nation against further al Qaeda attack at home."

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