Dec. 5, 2008 -- The Supreme Court decided today to take up the case of the lone enemy combatant left in the United States and decide whether someone who was swept up while living here legally can be held indefinitely by the military without charges.
"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," said Jonathan Hafetz of the ACLU, a lawyer for Ali Saleh Kahlah Al-Marri. "We are confident that upon review, the Court will strike down this radical -- and unnecessary -- departure from our nation's most basic values."
In court papers, Al-Marri's lawyers contend that, even though their client is a Qatari national and legal resident, not a U.S. citizen, the outcome of his case could apply equally to American citizens and "cast a pall over the physical liberty of all persons in the United States."
Al-Marri is currently incarcerated in a U.S. Navy brig in South Carolina.
Unlike other former enemy combatants who were seized either on the battlefield or on a return trip from an alleged visit with terrorists abroad, Al-Marri was living in Peoria, Ill., with his wife and five children when he was seized. He has been held as an enemy combatant for five years.
In 2003, President Bush signed an executive order declaring that Al-Marri was "closely associated" with Al Qaeda and had "engaged in conduct that constituted hostile and war-like acts."
The case will be argued sometime in the early spring when the administration of President-elect Barack Obama is in place. Critics of the Bush administration hope that the new administration will reject Bush's detention policies.
"The Supreme Court's decision to grant review will compel the incoming Obama administration to quickly focus on U.S. detention policy," said Sharon Bradford Franklin, senior counsel at the Constitution Project. "We hope that President-elect Obama will resoundingly reject the current administration's breathtaking claim that the United States may hold a civilian in military detention indefinitely. The new administration should either charge or release Mr. Al-Marri."
In court papers, the government claims that Al-Marri "was directed by al Qaeda leaders to enter the U.S. before September 11, 2001, to serve as a sleeper agent, facilitate terrorist activities subsequent to September 11 and explore computer hacking methods to disrupt bank records and the U.S. financial system."
Al-Marri claims that, while in custody, he was held at times incommunicado and was interrogated in "ways that bordered on, and sometimes amounted to, torture, including sleep deprivation."
Last July, the Fourth Circuit Court of Appeals held that Congress, under legislation passed in the wake of the Sept. 11 attacks, had empowered the president to detain individuals -- including U.S. citizens -- as enemy combatants and to hold them indefinitely.
The appeals court also found that Al-Marri had been afforded insufficient process to challenge the government's allegations.
Several high-ranking former Department of Justice and military officials, including Maj. Gen. Antonio M. Taguba, Brig. Gen. David M. Brahms, and former U.S. Attorney General Janet Reno have filed "friend of the court" briefs on behalf of Al-Marri.