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Court Puts Off Decision On Indefinite Detention

Justices: Indictment Made Issue Moot

This Jan. 16, 2009 photo released by the International Committee of the Red Cross via his lawyer Andy Savage, shows Ali Al-Marri at the Charleston Naval Brig in Charleston, S.C. (AP Photo/ICRC via Andy Savage)
This Jan. 16, 2009 photo released by the International Committee of the Red Cross via his lawyer Andy Savage, shows Ali Al-Marri at the Charleston Naval Brig in Charleston, S.C. (AP Photo/ICRC via Andy Savage) (Icrc - AP)
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Washington Post Staff Writers
Saturday, March 7, 2009; Page A05

The Supreme Court yesterday vacated a lower court's ruling that the president has the right to indefinitely detain a legal U.S. resident as a terrorism suspect, and put off a decision on one of the most expansive legal claims of the Bush administration.

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The justices did not rule on the merits of the decision but, instead, said it is moot now that the Obama administration has indicted suspected al-Qaeda agent Ali Saleh Kahlah al-Marri and said it would move him from a Navy brig to the federal court system.

The Supreme Court had been scheduled to hear Marri's case next month. He has been in prison for nearly six years.

The court's action relieves the new administration of having to either endorse or repudiate the Bush administration's assertion that the president may use the military to detain those legally in the country but accused of being enemy combatants without charging them with a crime.

While civil libertarians and human rights groups have pressed the Justice Department to renounce counterterrorism positions adopted in the Bush years, President Obama's team has indicated that it plans to move slowly on whether to discard those positions.

Attorney General Eric H. Holder Jr. has denounced waterboarding as "torture" and has indicated a determination to close the U.S. military prison at Guantanamo Bay, Cuba, but government lawyers have rejected invitations from federal judges to reverse course in several ongoing court disputes.

The new administration was not eager to take a stand on the legal issues surrounding Marri, 43, a Qatari national. Bush officials said Marri was part of a sleeper al-Qaeda cell intent on mass murder and disrupting the banking system, but they lacked the kind of evidence against him that a federal court would require.

Just before Marri was to be tried on fraud charges in 2003, President George W. Bush ordered him transferred to military custody, and he has been in the Navy brig in South Carolina since.

Last summer, the U.S. Court of Appeals for the 4th Circuit in Richmond agreed with the Bush administration that after the Sept. 11, 2001, attacks, Congress gave the president the power to indefinitely hold terrorism suspects under military guard, even if they were in the country legally.

But after the Supreme Court accepted Marri's case for review, the Justice Department decided last week to move Marri to the purview of the federal courts, and he was charged with conspiracy and providing material support to terrorists.

Marri's attorneys asked the justices to hear the case anyway, saying it was important for them to decide that neither the congressional resolution nor the Constitution gives the president such powers.

But the government said the issues were now hypothetical. To prove that it was not trying to "preserve its victory while evading review," it said it would not object to the court wiping out the 4th Circuit's decision.

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