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Supreme Court case: Can terror suspect in US be held indefinitely?

Justices agreed Friday to hear the appeal of terror suspect al-Marri, held without charge for more than five years.

By Staff writer of the Christian Science Monitor / December 5, 2008


The US Supreme Court has agreed to take up the case of Ali Saleh al-Marri, a graduate student and suspected Al Qaeda sleeper agent who has been held without charge in a US military prison for more than five years.

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The high court made the announcement on Friday after its private conference.

The case poses the most significant unresolved legal question yet in the Bush administration's controversial approach to the war on terror, and it sets the stage for another potential landmark national security decision next June.

At issue is whether the president has the power to order someone who is legally present in the United States to be held in indefinite military detention as an "enemy combatant."

The Fourth US Circuit Court of Appeals ruled 5 to 4 in July that Congress had given the president the power to declare and hold enemy combatants, including individuals who are legally present in the US.

Lawyers for Mr. Marri are appealing that decision, saying civilians in the US may only be detained through the criminal-justice system. They are asking the nation's highest court to state clearly what the law is and what it requires.

"The lower court has replaced settled and historic protections with confusion," writes Marri's lawyer, Jonathan Hafetz of the American Civil Liberties Union, in his brief to the court. "The Fourth Circuit has cast a pall over the physical liberty of all persons in the United States."

The Marri case will not be argued and decided for many months, well after the departure of President Bush and the arrival of the Obama administration.

Mr. Hafetz says the US has long barred military action against civilians within US borders. Congress has authorized war fighting and the holding of enemy combatants overseas, but lawmakers have insisted that the criminal justice system, not the military, be used to safeguard Americans at home, Hafetz says.

Government lawyers say that shortly after the 9/11 attacks, Congress passed a law called the Authorization for Use of Military Force (AUMF). They say that law granted the president broad power to designate civilians in the US - or anywhere - enemy combatants in the war on terror. Once so designated, they may be held by the military for as long as the war on terror continues, they say.

Marri is no different than Mohammed Atta and the other 9/11 hijackers, government lawyers say. "There can be no serious doubt that Congress, in passing the AUMF, sought to authorize the use of 'all necessary and appropriate force' against aliens who have come to the United States to take an active part in al Qaeda terror operations," writes Solicitor General Gregory Garre in his brief urging the court not to take up the case.