Recently John Bellinger III, counsel to the State Department under former President Bush, told Jane Mayer that “[the Obama administration] will have to either put up or shut up. Do they maintain the Bush Administration position, and keep holding [terrorist suspect Ali Saleh Kahlah al-Marri] as an enemy combatant? They have to come up with a legal theory.”
The Obama administration has opted to put up, and will charge al-Marri, who is suspected of providing material support to terrorists, in a civilian court:
The decision to move Marri into the U.S. courts, where he will be able to assert a host of rights to challenge any evidence against him, comes after lengthy debate at the highest levels of government.
The move, which could be announced publicly as early as the end of the week, also could avert a Supreme Court hearing in April at which Marri's human rights lawyers had planned to use his case to seek a precedent that could bind not only al-Marri but also scores of prisoners subjected to indefinite detention at Guantanamo. They are likely to press the court to go ahead with the hearing even in the face of expected Justice Department arguments that new criminal charges against Marri make the dispute moot.
The ACLU's Jonathan Hafetz seems pleased with the development. Hafets said in a statement that "If true, the decision to charge al-Marri is an important step in restoring the rule of law and is what should have happened seven years ago when he was first arrested." Al-Marri is also the subject of an upcoming Supreme Court case where the ACLU is challenging the legality of his designation as an "enemy combatant." Charging him could put an end to his Habeas petition, which the ACLU does not want to see. Hafetz, who is the lead counsel on that case, says that "it is vital that the Supreme Court case go forward because it must be made clear once and for all that indefinite military detention of persons arrested in the U.S. is illegal and that this will never happen again."
The outcome of the case is significant, because even if the administration decides to try all of the terrorist suspects captured outside Afghanistan in civilian courts, it will likely still reserve the right to detain suspected terrorists captured in Afghanistan, based on the argument that Afghanistan is a combat zone and the military should have the right to detain enemy combatants captured on the field of battle. But this could also be a positive harbinger of things to come. While al-Marri was the only "enemy combatant" held on U.S. soil, (which makes the question of what to do with him if convicted easier since he's already here) it's hard to see how the administration would come up with a legal theory that sees al-Marri as someone who could be prosecuted in the civilian criminal justice system to the exclusion of all the other detainees in custody. In other words, al-Marri's prosecution could signal the end of prosecuting suspected terrorists through military commissions.
“I think clearly it's the direction they intend to go," says Ken Gude, a human rights expert at the Center for American Progress. "There were some circumstances surrounding the al-Marri case that make it different from those in Guantanamo, but taking that aside, it is consistent with the position Obama articulated as a candidate, after he was elected, and after he took office, which is that he prefers to use the criminal justice system whenever possible.”
-- A. Serwer
