The Supreme Court announced today that it will take up a controversial Bush administration legal policy and decide whether the president has the power to order the military to arrest and hold a civilian in the United States based on his suspected ties to terrorists.
The justices voted to hear the case of Ali Saleh Kahlah Marri, the only person who remains in military custody in this country as an “enemy combatant.” Administration officials say he came to this country on a “martyr mission” for Al Qaeda.
The court will hear arguments in his case in March, two months after the Bush administration has left office. The incoming Barack Obama administration could defend the government’s handling of Marri’s case or it could change course and prosecute him in an ordinary criminal court.
A native of Qatar, Marri entered the United States on Sept. 10, 2001, and said he was seeking a master’s degree at Bradley University in Peoria, Ill. He had earned a bachelor’s degree there a decade earlier.
Three months later, the FBI arrested him and found on his laptop computer information about cyanide and other poisonous chemicals. Officials also learned he had received payments from Al Qaeda’s financiers.
At first, the government intended to try Marri for credit card fraud. But in June 2003, President Bush signed an order designating Marri as an “enemy combatant,” and he was whisked away to a military brig in South Carolina. He has been held there in virtual isolation for more than five years.
The Supreme Court will not decide whether Marri is an agent of Al Qaeda. Instead, the justices will decide whether the Bush administration had the legal authority to bypass the nation’s civilian laws and to hold a person in military custody.
The 5th Amendment says “no person shall be deprived of life, liberty or property without due process of law,” and that constitutional protection has been interpreted to apply to all persons in this country, not just citizens.
In their appeal on Marri’s behalf, lawyers for the American Civil Liberties Union said his case raises “a question of exceptional national importance.” Since the nation’s founding, they said, the Constitution has been understood to give “people arrested in this country … the right to a speedy criminal prosecution.”
Reacting to the court’s announcement, ACLU Legal Director Steven R. Shapiro said he was hopeful the justices “will ensure that people in this country cannot be seized from their homes and imprisoned indefinitely simply because the president says so.”
The Marri case is separate from the litigation over the detainees at Guantanamo Bay, Cuba. Those prisoners were captured abroad and have not officially entered the United States.
Earlier, the Bush administration had held Jose Padilla, a native New Yorker, in military custody as an enemy combatant. He had been arrested at O’Hare Airport in Chicago in 2002 after a return flight from Pakistan. The Supreme Court did not rule on his case, however. One of his appeals was on its way to the court when the administration switched course and brought criminal charges against Padilla in Florida. He was convicted and imprisoned.
Bush administration lawyers had urged the court not to hear Marri’s appeal. They said his “military detention is lawful given (his) close association with Al Qaeda and entry into this country for the purpose of committing hostile and war-like acts.”
They said the president was given the power to hold “enemy combatants” when Congress adopted the Authorization for the Use of Military Force a week after the 9/11 attacks. It says the president may use “all necessary and appropriate force against those nations, organizations and persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.”
Some Democrats in Congress have said that resolution gave the president the power to use military force abroad but that it did not change the law within the United States.
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