Terrorism Suspect Headed to U.S. Court

By Carrie Johnson
Washington Post Staff Writer
Saturday, February 28, 2009

President Obama directed military officials to transfer suspected al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri into the custody of U.S. law enforcement yesterday, reversing a Bush-era order that essentially kept the detainee outside the reach of American courts for more than five years.

The turnaround came on the same day that Justice Department leaders unsealed criminal charges against Marri, 43, who has been incarcerated in a South Carolina naval brig since 2003 as the sole remaining "enemy combatant" in the United States.

Marri could face up to 15 years in prison on allegations of conspiracy and providing material support to terrorists. The Qatar native journeyed to Illinois, purportedly to begin work on a master's degree, a day before terrorist strikes hit the Pentagon and the World Trade Center in New York on Sept. 11, 2001.

Marri's legal status had been closely watched in part because human rights advocates used him as a test case before the Supreme Court. They hope to repudiate a policy that allowed the government to indefinitely detain legal U.S. residents suspected of conspiring with al-Qaeda without charging them with a crime.

A decision to secure an indictment against Marri in a federal court in Peoria, Ill., probably will avoid a high court hearing scheduled for late April, in which the court could have set a precedent that would tie Obama's hands in cases involving future suspects.

Acting Solicitor General Edwin S. Kneedler yesterday afternoon petitioned the court to dismiss the case and issue an order "as expeditiously as possible" that would allow the Defense Department to transfer Marri to civilian custody.

Kneedler wrote that the Supreme Court case was no longer relevant because Marri was challenging his status as a person held by the military without charges, a situation that no longer applies. "No live controversy remains in this case," the government filing said.

To make their point, Justice Department officials cited the case of Jose Padilla, a U.S. citizen who had been accused of conspiring to detonate a "dirty bomb" on American soil before being charged with and pleading guilty to lesser criminal offenses. The Bush administration initially declared Padilla an enemy combatant and held him in military custody but then sought his release to face criminal indictment in U.S. courts in 2005.

In that case, the U.S. Court of Appeals for the 4th Circuit refused a government request to transfer Padilla to the Justice Department, a step later granted by the Supreme Court.

Jonathan Hafetz, a lawyer with the American Civil Liberties Union's National Security Project who is defending Marri, challenged the government's interpretation in the new case and insisted that the high court argument proceed. "It is critical that the court hears Mr. Marri's case and categorically rejects the notion that any president has the sweeping authority to deprive individuals living in the United States of their most basic constitutional rights by designating them 'enemy combatants,' " Hafetz said.

The Supreme Court apparently intends to act quickly on the government's request; the justices directed Marri's attorneys to respond by Tuesday.

The indictment covers only two pages, although Marri's defense team will press government lawyers to fill in more details about their case in the months ahead.

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