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An early test of executive powers
In a Supreme Court case, the Obama administration will immediately be forced to take its stand on how the United States should handle enemy combatant issues.
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WASHINGTON - Just a month after Barack Obama takes office, he must tell the Supreme Court where he stands on one of the most aggressive legal claims made by the Bush administration: that the president may order the military to seize legal residents of the United States and hold them indefinitely without charging them with a crime.
The new administration's brief, which is due Feb. 20, has the potential to hearten or infuriate Obama's supporters, many of whom are looking to him for stark disavowals of the Bush administration's legal positions on the detention and interrogation of so-called enemy combatants held at Navy facilities on the U.S. mainland or at Guantanamo Bay, Cuba.
During the campaign, Obama made broad statements criticizing the Bush administration's assertions of executive power. But now he must address a specific case, that of Ali al-Marri, a Qatari student who was arrested in Peoria, Ill., in December 2001. The Bush administration asserts that Marri was a sleeper agent for Al-Qaida, and it is holding him without charges at the Navy brig in Charleston, S.C. He is the only person currently held as an enemy combatant on the mainland, but the legal principles established in his case are likely to affect the roughly 250 prisoners at Guantanamo.
Many legal experts say that all of the new administration's options in Marri's case are perilous. Intelligence officials say he is exceptionally dangerous, making deportation problematic.
Trying him on criminal charges could be difficult, too, in part because some of the evidence against him may have been obtained through torture and would not be admissible.
And staying the course in the Marri case would outrage civil libertarians.
"If they adopt the Bush administration position, or some version of it, it is going to be a moment of profound disappointment for everyone in the legal community and Americans generally who believe that the Bush administration has tried to turn the presidency into a monarchy," said Brandt Goldstein, a professor at New York Law School.
Andrew C. McCarthy, a former federal prosecutor who has generally supported the Bush administration's approach to fighting terrorism, said Obama's hands are tied. He cannot, McCarthy said, continue to maintain that Marri's detention is lawful.
"I don't think politically for him that's a viable option," McCarthy said. "Legally, it's perfectly viable."
Another alternative for the new administration is to prosecute Marri as a criminal. But it is not clear that there is admissible evidence against him.
When Marri was arrested, in December 2001, he was charged with garden-variety crimes: credit card fraud and, later, lying to federal agents and financial institutions, and identity theft. But when Bush moved Marri from the criminal system to military detention in June 2003, the government agreed to dismiss those charges with prejudice, meaning they cannot be refiled.
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