Justices to Decide Legality of Indefinite Detention

The court said it would consider whether the law authorizes -- and if so, whether the Constitution allows -- "the seizure and indefinite military detention of a person lawfully residing in the United States, without criminal charge or trial" based on government assertions of al-Qaeda contacts.

Marri was a graduate student in Peoria, Ill., when he was arrested in December 2001. He was charged a year later with lying to the FBI and using a false name and a stolen Social Security number to apply for bank accounts in Macomb, Ill., for a fictitious business.

But just before his trial in June 2003, Bush ordered the attorney general to turn him over to the military, and he has been held in isolation in the Navy brig in Charleston, S.C., since.

The government says Marri trained at an al-Qaeda camp and met Osama bin Laden and Khalid Sheik Mohammed in the summer of 2001, and officials have said that the FBI came to think he was al-Qaeda's senior operative in the United States. A government affidavit filed with the court quoted a defense intelligence official saying that "Al-Marri offered to be an al Qaeda martyr."

Marri is the last of three designated enemy combatants held in the United States since 2001. His case is most similar to that of Jose Padilla, a U.S. citizen originally accused of attempting to explode a radiological "dirty bomb" in the United States. Padilla was transferred to civilian custody to face terrorism charges before the Supreme Court could take up the issue of the military's power to detain him.

Al-Marri v. Pucciarelli probably will be heard in March, after Obama takes office with his new team at the Justice Department. Although Obama has strongly opposed Bush on the claims of executive power he has made in fighting terrorism, his views on Marri and enemy combatants held inside the country are unclear. Obama has promised to abolish military commissions underway at Guantanamo Bay and has said that accused terrorists should be tried in civilian courts or military courts-martial.

A spokeswoman for Obama's national security team yesterday declined to comment. "President-elect Obama will make decisions about how to handle detainees as president when his full national security and legal teams are in place. There is one president at a time, and we intend to respect that," Brooke Anderson said.

Obama's options include backing the administration's current position of broad detention authority. He -- or the Bush administration -- could also short-circuit the court's examination by attempting to charge Marri in federal court or by deporting him to his native country.

But Chesney, the law professor, said it was unclear whether the statements relied upon by the government to detain Marri would be admissible as evidence in federal court.

Obama also, of course, has the option of reversing the administration's interpretation of the law once he takes office.

A prominent group of former judges and Justice Department lawyers, along with retired military officers, filed briefs backing Marri's position. They include Maj. Gen. Antonio M. Taguba, who led the Army's first official investigation into abuse at Abu Ghraib prison in Iraq.

The ruling supporting Bush is "a grave threat to the civil liberties of American citizens," said the brief submitted by the group, which also included former attorney general Janet Reno and former federal judge Abner Mikva, a longtime Obama mentor.

Additionally, liberal civil rights groups who have been hostile to Bush and friendly to Obama cheered the court's decision to take the case, and made it clear that they expect the Obama administration to see the policy differently.

"Conflicts like this one are among the best reasons to look forward to a new administration," said Kathryn Kolbert, president of the liberal People for the American Way.

Staff writer Jerry Markon and researcher Julie Tate contributed to this report.