Obama signals major shift in US anti-terror policy

He ordered the case of enemy combatant Ali Al-Marri, who has been held in solitary confinement for five years without charges, to be moved to the US criminal justice system.

J. Pat Carter/AP
Legal analysts are drawing parallels between the Al-Marri case and that of Jose Padilla (c.), who was held as an enemy combatant for three and a half years in a different wing of the Charleston brig.

In a major shift away from the controversial anti-terror policies of the Bush administration, President Obama on Friday ordered the transfer of a suspected Al Qaeda sleeper agent from a Navy brig into the US criminal justice system.

The two-paragraph order came shortly after a two-count federal indictment was unsealed in Illinois charging Ali Saleh Al-Marri with conspiring to provide material support to Al Qaeda.

The move marks an abrupt shift away from former President Bush’s frequent assertions of commander-in-chief power to order the open-ended detention and harsh interrogation of anyone he deemed to be an enemy combatant dangerous to US national security.

Instead of seeking to defend that assertion of executive authority, the Obama administration appears to be prepared to rely instead on the criminal justice system to determine how Mr. Al-Marri should be treated.

Held in solitary confinement

Al-Marri, a citizen of both Qatar and Saudi Arabia, has been held without charge in a solitary confinement cell as an enemy combatant in a Navy brig in Charleston, South Carolina, for five years and eight months.

At one point, he complained to his lawyer that his harsh treatment and conditions of confinement were driving him out of his mind. According to legal documents, he protested by smearing the inside of his cell with his own feces.

His case sparked a contentious debate over whether an American president has the power to order a legal US resident like Al-Marri – or even a US citizen – into indefinite, incommunicado detention by the military simply by designating that person an enemy combatant.

After years of litigation that issue is currently before the US Supreme Court, which is poised to hear Al-Marri’s case in April. A decision would be expected by late June. But now, given Al-Marri’s possible transfer to the criminal justice system, the Obama administration is expected to ask the high court to dismiss the case.

If granted, the action would leave undisturbed existing legal precedents in the Fourth US Circuit Court of Appeals in Richmond upholding open-ended detentions of enemy combatants within US borders.

Al-Marri’s lawyer, Jonathan Hafetz of the American Civil Liberties Union, says he will oppose any government motion to dismiss the case.

“We will continue to pursue Mr. Al-Marri’s case before the Supreme Court to make sure that no American citizen or lawful resident will ever again be subjected to such treatment,” he said in a statement. “It is important that the court hears Mr. Al-Marri’s case and rejects, once and for all, the notion that any president has the sweeping authority to deprive individuals living in the United States of their most basic constitutional rights by designating them ‘enemy combatants.’”

Parallels with Padilla case

Legal analysts are drawing parallels between the Al-Marri case and the earlier case of Jose Padilla. Mr. Padilla, a US citizen, had been held as an enemy combatant for three and a half years in a different wing of the Charleston brig. On the eve of his case arriving at the

Supreme Court, the Bush administration announced it was moving Padilla into the criminal justice system to face trial in Miami.

The move left in place a Fourth Circuit legal precedent that was later used to successfully uphold Al-Marri’s continued detention in the brig. Both of those precedents would face close scrutiny by the justices of the Supreme Court if the Al-Marri case went forward.

Some analysts question whether the administration is seeking dismissal of the Al-Marri case at the high court to avoid a potential landmark defeat and/or to preserve its own power to designate and hold enemy combatants.

“This is déjà vu all over again. What the Bush administration did with Padilla, the Obama administration is trying to do with Al-Marri,” say Jonathan Freiman, a Padilla lawyer and Yale Law School lecturer.

“Transferring Al-Marri out of the brig is the right thing to do. Moving to dismiss the case is not,” he says. “It’s just a calculated political move to avoid taking a position on what Justice Stevens called 'nothing less than the essence of a free society,' “ Mr. Freiman says.

Much is at stake

“There is a lot at stake. This is not a fight they want right now,” says Carl Tobias, a professor at the University of Richmond Law School who has closely followed the Padilla and Al-Marri cases. “Maybe they want that power in terms of national security. They may want to designate someone an enemy combatant and hold that person,” he says. “Or at least they want the flexibility to be able to do that if they believe it is necessary.”

Al-Marri is not expected to be released from the brig until the Supreme Court decides whether it will grant the government’s dismissal motion or move forward, hear oral argument, and decide the case.

In the Padilla case, government officials maintained that even if Padilla was acquitted at trial he was still an enemy combatant and could be returned to his solitary confinement cell at any time.

The two-count indictment was returned on Thursday by a federal grand jury sitting in Peoria, Ill. It was unsealed on Friday. It charges Al-Marri with conspiring to provide material support to a known terrorist organization. In addition he is charged with secretly serving as an Al Qaeda fighter while posing as a college student.

The indictment offers few details, but officials have said Al-Marri was suspected of having been sent to the US to participate in a second-wave of terror attacks following the 911 assaults on the World Trade Center and Pentagon. He arrived in the US with his wife and children on September 10, 2001.

Although he seeks to continue to wage the Supreme Court battle, Mr. Hafetz praised the Obama administration for returning the Al-Marri case to the federal courts.

Al-Marri had initially been detained and questioned as a material witness. He was later charged with credit card fraud. Those charges were later dismissed when he was transferred to the brig as an enemy combatant.

“This indictment is an important step toward restoring the rule of law and is exactly what should happen when the government suspects an individual of terrorist acts,” Hafetz said. “This case is now finally where it belongs: in a legitimate court that can fairly determine whether Mr. Al-Marri is guilty of a crime.”

Obama administration officials also praised moving the case to the criminal courts. “This indictment shows our resolve to protect the American people and prosecute alleged terrorists to the full extent of the law,” said Attorney General Eric Holder in a statement. “In this administration, we will hold accountable anyone who attempts to do harm to Americans, and we will do so in a manner consistent with our values.”

Related story: For Gitmo detainee, rare phone call home to Saudi Arabia

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