By ADAM LIPTAK
WASHINGTON — Just a month after President-elect 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.
Ali al-Marri is being held in a Navy brig in South Carolina.
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By reviewing government documents, court records and media reports, The Times was able to compile an approximate list of detainees currently at Guantánamo.
The new administration’s brief, which is due Feb. 20, has the potential to hearten or infuriate Mr. 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 American mainland or at Guantánamo Bay, Cuba.
During the campaign, Mr. 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 says Mr. Marri is a sleeper agent for Al Qaeda, 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 Guantánamo.
Many legal experts say that all of the new administration’s options in Mr. 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,” said Brandt Goldstein, a professor at New York Law School, “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.”
In a statement, a spokeswoman for Mr. Obama, Brooke Anderson, said he “will make decisions about how to handle detainees as president when his full national security and legal teams are in place.”
There are other significant cases on the Supreme Court’s docket — including ones concerning indecency on the airwaves, religious displays, voting rights and the possible pre-emption of state injury suits by federal law — but specialists say a midcourse correction is most likely in the enemy combatant case, Al-Marri v. Pucciarelli, No. 08-368.
Charles Fried, who was solicitor general in the Reagan administration, said such changes should be undertaken “reluctantly and rarely” and only “for sufficient reason in a sufficiently urgent case.”
From the new administration’s perspective, Mr. Marri’s case may meet that standard.
A year ago, Mr. Obama answered a detailed questionnaire concerning his views on presidential power from The Boston Globe. “I reject the Bush administration’s claim,” Mr. Obama said, “that the president has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.”
That sounds vigorous and categorical. But applying this view to Mr. Marri’s case is not that simple. Although he was in the United States legally, he was not an American citizen. In addition, a 2001 Congressional authorization to use military force arguably gave the president the authority that Mr. Obama has said is not conferred by the Constitution alone.
Still, Andrew C. McCarthy, a former federal prosecutor who has generally supported the Bush administration’s approach to fighting terrorism, said Mr. Obama’s hands are tied. He cannot, Mr. McCarthy said, continue to maintain that Mr. Marri’s detention is lawful.
“I don’t think politically for him that’s a viable option,” Mr. McCarthy said. “Legally, it’s perfectly viable.”
There is precedent for reversing course between campaign and courthouse. When Bill Clinton was running for president in 1992, he was vehement in his opposition to the first Bush administration’s policy of intercepting Haitian refugees at sea and returning them without asylum hearings.
By the time he took office, though, Mr. Clinton had changed his mind, instructing the Justice Department to defend the policy in the Supreme Court, which upheld it in 1993.
Mr. Obama’s supporters are hoping for a different approach, one that will ensure that the precedents set during the Bush administration do not take root.
“The agenda for the Obama administration in dealing with the Bush administration’s assault on the rule of law,” said Eric M. Freedman, a law professor at Hofstra University and a member of the Marri legal team, “should be to plow the site with both intellectual and political salt.”
In 1993, Mr. Clinton said that practical reality trumped legal theory. In the Marri case, too, the practical alternatives to military detention may strike the Obama administration as unpalatable.
One possibility is to deport Mr. Marri to Qatar, but Bush administration officials say that would be an enormous mistake.“Al-Marri must be detained,” Jeffrey N. Rapp, a defense intelligence official wrote in a court filing in 2004, “to prevent him from aiding Al Qaeda in its efforts to attack the United States, its armed forces, other governmental personnel, or citizens.”
Mr. Marri’s lawyers would be delighted to see their client freed, but they are also eager to vacate a decision of the federal appeals court in Richmond, Va., in July upholding the president’s authority to detain Mr. Marri subject to a court hearing on whether he was properly designated an enemy combatant.
Jonathan Hafetz, a lawyer with the American Civil Liberties Union who represents Mr. Marri, emphasized both points.
“If, as President-elect Obama has pledged, the rule of law in America is to be restored,” Mr. Hafetz said, “then Mr. al-Marri’s military detention must cease and the lower court’s ruling upholding the president’s power to order the military to seize legal residents and American citizens from their homes and imprison them without charge, must be overturned.”
Another alternative for the new administration is to prosecute Mr. Marri as a criminal. But it is not clear that there is admissible evidence against him.
When Mr. 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 Mr. Bush moved Mr. 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.
The more serious accusations recounted in Mr. Rapp’s statement are attributed partly to Khalid Shaikh Mohammed, who is believed to be the chief architect of the Sept. 11 attacks and who was captured in early 2003. The Central Intelligence Agency has said Mr. Mohammed was subjected to waterboarding, and information obtained from him may therefore not be admissible in court. Mr. McCarthy, the former prosecutor, said he hoped the new administration is sifting through its options with exceptional care.
“If they can’t try him in federal court and assuming he poses the severe risk the Bush administration suggests he poses, is there some room to detain him under the immigration system?” Mr. McCarthy asked. “If there is not a Plan B, we have a disaster that transcends al-Marri,” he added, referring to the larger question of what to do with the prisoners at Guantánamo Bay.
A second case concerning detainees is moving even faster than Mr. Marri’s. Last month, the Supreme Court ordered a federal appeals court to take a fresh look at a case brought by four former prisoners at Guantánamo Bay who say they were tortured. Acting fast, the appeals court initially ordered briefing to be completed by the Friday before Inauguration Day.
Depending on how you look at it, the appeals court was being exceptionally efficient, uninterested in the new administration’s views or doing it a favor by not forcing it to take an immediate position on whether provisions of the Bill of Rights and a federal law guaranteeing religious freedom apply to detainees held at Guantánamo Bay.
Eric L. Lewis, a lawyer for the former prisoners, asked the court to slow things down, a request the Bush Justice Department opposed. But the appeals court granted Mr. Lewis’s request on Friday, and the first filings are now due on Jan. 26 — the Monday after Inauguration Day.Original here
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