Indefinite Detention Case Will Test Obama's Pledges

NEW YORK, Feb 4 (IPS) -- In what promises to be the first major test of the Barack Obama administration's new approach to the rule of law, the Supreme Court will soon hear what could be one of the most consequential cases in U.S. history.

It will be asked to answer the question: Can a U.S. president declare a legal resident an "enemy combatant" and hold him or her indefinitely without charge or trial?

The legal U.S. resident in question is Ali Saleh Kahlah al-Marri, who has been detained in solitary confinement at a Navy brig in South Carolina since June 2003. Al-Marri is the only remaining person held in the United States as an "enemy combatant." He is being represented by lawyers from the American Civil Liberties Union (ACLU).

The case, Al-Marri v. Spagone, is a habeas corpus action, challenging al-Marri's indefinite detention. The defendant is Navy Commander Daniel Spagone, who runs the Navy brig in South Carolina where Al-Marri is being held by the military.

The central pre-Supreme Court question is what position the new Obama administration will take when it files its brief, currently due on March 23rd. The Supreme Court will hear oral arguments during the last week of April and is expected to hand down its ruling in June. The brief filed by the government in the lower courts during the George W. Bush administration defended the president's authority to designate "enemy combatants" and to detain them indefinitely.

The ACLU says that the Al-Marri case "provides the Obama administration with an early and critical opportunity to repudiate the abuses of the past eight years and restore the rule of law."

Jonathan Hafetz, ACLU's lead attorney on the Al-Marri case, told IPS, "This is one of most extreme examples of the Bush administration's abuse of executive power. It is a case where President Bush sought to push the outer limits of the Constitution. It is legally and morally indefensible."

A separate case, Al-Marri v. Gates, is contesting al-Marri's abusive treatment and conditions of confinement at the Navy brig.

Al-Marri, a Qatari national, came lawfully to the United States in September 2001with his wife and five children to pursue a master's degree at Bradley University in Peoria, Illinois. He was arrested by the FBI at his home that December and subsequently indicted for credit card fraud and false identification.

Al-Marri asserted his innocence and prepared to contest the charges. But on Jun. 23, 2003, on the eve of a hearing to suppress illegally seized evidence and less than a month before trial, President Bush declared al-Marri an al Qaeda agent and designated him an "enemy combatant" in the "war on terrorism". That same day, the military took custody of al-Marri and incarcerated him in the Navy brig, where he has been detained without charge ever since.

At stake in Al-Marri v. Spagone is whether the president can order the military to seize and detain indefinitely, without charge or trial, individuals lawfully residing in the United States, including U.S. citizens, based on government assertions that they planned to commit terrorist activities.

In 2007, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled that the government cannot hold individuals arrested in this country in military detention without charge.

But in July 2008, the full U.S. Court of Appeals for the Fourth Circuit ruled in a narrowly divided decision that the president had legal authority to imprison al-Marri indefinitely without charge based on the facts alleged. As one judge noted in dissent, however, to accept the government's claim of extraordinary detention power would have "disastrous consequences for the Constitution - and the country".