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Obama's mixed signals on terror policy

The White House is seeking to protect at least some of its Bush-era privileges.

By Staff writer of The Christian Science Monitor / March 6, 2009


Lawyers with the Obama administration are working to prevent full judicial review of one of the most controversial aspects of President Bush's war on terror – his claim of authority to hold US citizens and legal residents in indefinite military detention without charge as enemy combatants.

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On Friday, the Supreme Court justices will meet to consider a motion by the Obama administration to dismiss a petition that raises the issue. On the same day, Justice Department lawyers will urge a federal judge in San Francisco to throw out a civil lawsuit that seeks judicial scrutiny of the work of John Yoo, a former Bush administration adviser who helped draft memos that laid the legal groundwork for President Bush's counterterrorism approach.

In recent weeks, President Obama has rejected some Bush policies in the war on terror while embracing others. His position on executive power in antiterror efforts remain ill-defined.

Mr. Obama seized the antiterror agenda on his second day in office, ordering closure of the detention camp at Guantánamo and banning the use of torture by US interrogators. But the administration has also embraced many of the Bush administration's policies – including reliance on the state secrets privilege and a denial of habeas corpus rights to detainees in Afghanistan who were captured in a different country and transported to a US military prison in Afghanistan for indefinite detention.

The recent developments come amid mounting calls in Congress for a truth commission to investigate the Bush administration's antiterrorism policies and practices.

The Justice Department recently released a series of discredited 911-era legal memos written by Mr. Yoo and others suggesting that constitutional rights be bypassed to help win the war on terror. The government also acknowledged the destruction of 92 videotapes of interrogations of terror suspects by the Central Intelligence Agency.

The pending US Supreme Court case involves an appeal filed on behalf Ali Saleh Al-Marri, an alleged Al Qaeda sleeper agent who has been held as an enemy combatant in the US naval brig in Charleston, S.C., for five years and eight months.

Last Friday, Mr. Obama ordered Mr. Marri released from military detention and transferred to the criminal justice system.

The move was hailed by human rights activists who believe terror suspects should be prosecuted in civilian courts rather than held without charge by the military.

But the move is also controversial. It is seen by some analysts as a way of preventing the Supreme Court from ruling on the constitutionality of Marri's military detention. The high court was to hear the case in April.

Marri's lawyers are urging the justices to hear the case and issue a decision. "It is especially important that the prospect of further military detention be dispelled, once and for all, after years of intensive litigation in the lower courts, now that the issue is squarely presented," writes Jonathan Hafetz of the American Civil Liberties Union in his brief to the high court.