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'Combatant' Case to Move From Tribunal To U.S. Court

By Carrie Johnson and Julie Tate
Washington Post Staff Writers
Friday, February 27, 2009

The Justice Department is preparing to announce criminal charges against Ali Saleh Kahlah al-Marri for allegedly providing material support to al-Qaeda terrorists, sources said, a groundbreaking step that would place the alleged sleeper agent in the purview of the U.S. courts rather than before a military tribunal.

Marri is the last remaining "enemy combatant" in the United States, and he has spent 5 1/2 years in a military brig in South Carolina. Indicting him in a federal district court in central Illinois could avert a Supreme Court ruling that would tie the Obama administration's hands in dealing with future terrorism suspects.

Lawyers for Marri said yesterday that they will press ahead for a Supreme Court hearing in April, hoping to use his case as a vehicle to formally repudiate the Bush administration's position that enemy combatants can be held indefinitely by U.S. authorities.

Justice Department officials are expected to argue that their decision to seek an indictment of Marri renders the Supreme Court case moot and that it should be dismissed, said the sources, who spoke on the condition of anonymity because the case is at a delicate stage.

Justice Department and White House officials declined to comment on Marri yesterday, as a federal grand jury in Peoria, Ill., met for several hours to consider his case. Criminal charges, which could include conspiracy, could be unveiled as early as today, the sources said.

Marri's prosecution could clear the way for some of the approximately 245 detainees remaining at the military prison at Guantanamo Bay, Cuba, to be indicted in U.S. courts, though authorities have said significant legal and diplomatic hurdles remain. Among them is whether evidence secured through classified intelligence channels or harsh interrogation techniques is too sensitive or tainted to introduce into the American legal system.

In one of his first steps since taking office last month, President Obama explicitly directed government lawyers to review the status of Marri's case. He also ordered the closure of the prison at Guantanamo Bay within one year.

Attorney General Eric H. Holder Jr. said in an interview yesterday that review teams of lawyers from several federal agencies are poring over detainee files in an effort to determine "who these people were, who they are and what they've done."

Holder did not rule out the possibility that some of the inmates would be released to allied countries, or that some could be processed through military commissions or other "fair" legal mechanisms. But the administration will act under the presumption that U.S. courts are the "touchstone," he added.

The decision to move Marri into the U.S. courts, where he will be able to assert a host of rights to challenge any evidence against him, comes after lengthy debate at the highest levels of government.

Authorities arrested Marri in Peoria in December 2001, not long after al-Qaeda engineered strikes on New York and the Pentagon. The Qatar native had come to the United States in September of that year with his wife and five children to obtain a master's degree at Bradley University.

After his arrest, Marri faced charges of credit card fraud and other low-level criminal offenses. Since 2003, he has been housed in a South Carolina brig where at points he was subjected to painful stress positions, extreme sensory deprivation and violent threats while he was denied access to lawyers, according to court filings by his legal team. Recent news accounts confirmed by his lawyers suggest that Marri's treatment has improved over time.

It is unclear whether prosecutors will seek to use evidence provided by other terrorism suspects -- whose accounts could be questioned because the suspects faced alleged mistreatment that lawyers have likened to torture -- or whether prosecutors have avoided that problem by using a broad statute that bars people from offering support to terrorist organizations.

In recent years, prosecutors have employed that "material support of terrorism" law to secure convictions against Hamas and Hezbollah fundraisers, as well as groups of men accused of plotting terror strikes amid questions about their organizational skills and ability to actually carry out an attack.

Human rights advocates cheered the move in the Marri case as "another crucial step in the right direction," in the words of Geneve Mantri, a government relations director specializing in counterterrorism and human rights issues at Amnesty International.

"If there are individuals who pose a real threat to the United States, the best, most effective means of dealing with them is the current system of justice," Mantri said. "There are a number of outstanding questions about how the detainee cases will be reviewed and what the approach of the new administration will be, but Amnesty International welcomes this as an indication that they have faith in the U.S. justice system and rule of law."

Marri's case presents the Supreme Court with one of the broadest claims of executive power the Bush administration asserted: the ability of the president to have the military indefinitely detain someone residing lawfully in the United States. The court accepted the case in December and had scheduled oral arguments for April 27.

Lawyers for Marri yesterday praised the Justice Department's move but said they want the Supreme Court to hear his case.

"If true, the decision to charge al-Marri is an important step in restoring the rule of law and is what should have happened seven years ago when he was first arrested," said Jonathan Hafetz, one of Marri's lawyers. "But it is vital that the Supreme Court hear the case because it must be made clear once and for all that indefinite military detention of persons arrested in the U.S. is illegal and that this never happens again."

Several lawyers who have been involved with detainee cases said it is hard to know how the justices would react to such a development in a case they already had accepted, but they said it is likely that the justices would not press forward with hearing Marri's case if the Obama administration asked them not to.

"My sense is that this is an issue that in many ways all three branches would like to see go away," said Matthew Waxman, a Columbia University law professor who dealt with detainee issues at the State and Defense departments.

The court might be more sympathetic to a request that comes from the Obama administration rather than the Bush administration, which had asked the court not to hear Marri's case. The court already has granted the new administration extra time to file its legal arguments in the case, and Waxman said the justices might be receptive in other ways. "As a matter of prudential deference, it might be inclined to let the executive branch try to work through these decisions on its own," he said.

Staff writers Robert Barnes and Peter Finn contributed to this report.

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