Why Did We Hold Al-Marri Without Trial?

The Bush administration held Ali Saleh Kahlah al-Marri without charges for eight years, five of those in a military brig in South Carolina. Shortly after the Obama administration took office -- and over the protestations of those who insisted the criminal justice system could not be trusted to handle the cases of suspected terrorists -- al-Marri was charged with attempting to provide material support to terrorists. He agreed to a plea bargain and plead guilty soon after. Yesterday, a judge sentenced him to 15 years in prison, including time served. All the predictions of catastrophe in this case -- from the wholly unlikely prospect of an acquittal to the notion that criminal justice law would be distorted by the trying of a suspected terrorist in civilian court -- were proven false.

Still, the larger issue of whether the president can hold someone indefinitely without charges if he believes they are a terrorist isn't resolved. Part of the Obama administration's gambit in charging al-Marri was that it preempted the Supreme Court from ruling on the issue of whether the president could order a United States resident held indefinitely without trial on suspicion of terrorism. The Supreme Court was poised to hear, and possibly overturn a lower court ruling in favor of the administration. Instead, we're left with something of a stalemate -- the Court vacated the lower ruling, so the precedent that what the Bush administration did was legal no longer exists, and the Obama administration, by charging al-Marri criminally, essentially admitted they didn't have a case.

But the composition of courts change. Administrations change. Without a Supreme Court ruling, there's nothing to prevent a more hawkish administration from attempting to hold another U.S. resident, citizen or otherwise, without charges on suspicion of terrorism in the future. If it happens, this fight will have to play out all over again.

“We would have liked to see a decision from the Supreme Court preventing this from happening again,” said Jonathan Hafetz, an ACLU lawyer who represented al-Marri in his habeas petition. “We wanted a final say."

-- A. Serwer

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