ADVERTISEMENT Bush detainee policy loses key legal basis after Supreme Court decision Stephen C. Webster

Published: Saturday March 7, 2009





Print This Email This However, Obama administration's argument simultaneously quashed challenge to and extended assumed powers

The US Supreme Court Friday dismissed a constitutional challenge brought by alleged Al-Qaeda sleeper agent Ali al-Marri as to whether "enemy combatants" can be held indefinitely on US soil.



After U.S. Government attorneys argued the case against Marri is "moot" because he's been finally been charged in a civilian court, the justices issued a one paragraph order knocking down both Marri's challenge and a lower court ruling supportive of Bush's controversial detainee policies.



"Andy Savage, al-Marri's attorney in Charleston, hailed the move," reported the Charleston Post and Courier. "It means that there is no case law now that can support what Bush did."



While opponents of former President Bush may find some cause to rejoice at the news, the Obama administration's "moot" argument effectively prevented the court from directly taking up the constitutional issue of Bush's detention policies. Salon writer Glenn Greenwald called the administration's course of action "a virtual repeat of what the U.S. Government did in the Jose Padilla case."



"This action means not only that Obama could imprison legal residents or even American citizens as 'enemy combatants,' but could even re-declare Al-Marri himself to be an 'enemy combatant' if he's acquitted in his trial," he noted.



Marri, a dual Qatari-Saudi national, was arrested in late 2001. He has been held in a military brig in South Carolina since 2003 when Bush declared him an "enemy combatant."



But in a change of status, he was charged last week in a federal court with providing support to Al-Qaeda, and announced his transfer to a federal prison.



"Al-Marri's case now moves to the civilian courts system, where Savage said it should have been in the first place," said the Post and Courier.



The Supreme Court agreed in December to consider a petition by Marri's lawyers challenging former president George W. Bush's authority to indefinitely hold US residents and citizens without charge or trial.



But President Barack Obama's administration sought to block the challenge, urging in papers filed before the court Wednesday that the case be dismissed, because Marri had now been charged in the federal system.



"Marri is under indictment in the state of Illinois," reported the Miami Herald. "The court's order allows the government to move him from the Navy prison in South Carolina where he has been held for 5 1/2 years, to a civilian jail cell. Marri, a native of Qatar, was a legal U.S. resident who was studying at Bradley University in Illinois when he was arrested in late 2001 as part of the investigation of the 9/11 terrorist attacks."



"Obama has not rejected the use of preventive detention, which was pursued by the administration of George Bush, Obama's predecessor, as part of the 'war on terror,'" noted Al Jazeera.



"We applaud the Supreme Court for vacating a decision that accepted the extraordinary claim that the president has free-wheeling authority to detain indefinitely people living in the United States," said Emily Berman with the NYU School of Law, in a published advisory. "But we are still disappointed that the court did not take this opportunity to firmly clarify the limits of detention power. It's up to President Obama now to affirmatively renounce the domestic detention power claimed by his predecessor."



"We trust that the Obama administration will not repeat the abuses of the Bush administration having now chosen to prosecute Mr. al-Marri in federal court rather than defend the Bush administration's actions in this case," Marri's attorney told the Associated Press.



With wire reports.



This story has been modified from an original version.





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