US Justice Department to bring criminal charges against 'enemy combatant'

The move places the last remaining "enemy combatant" in the US before a civilian court instead of a military tribunal.

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The Justice Department is set to bring criminal charges in federal court against Ali Saleh Kahlah al-Marri, the last remaining "enemy combatant" being held in the US, according to news reports. He is expected to be charged with providing material support to Al Qaeda.

The Washington Post reports that Mr. Marri has been held by the military since 2003 without being charged, and the US Supreme Court was to hear the challenge to his incarceration this year.

[Marri] spent 5 1/2 years in a military brig in South Carolina. Indicting him in a federal district court in central Illinois could avert a Supreme Court ruling that would tie the Obama administration's hands in dealing with future terrorism suspects.
Lawyers for Marri said yesterday that they will press ahead for a Supreme Court hearing in April, hoping to use his case as a vehicle to formally repudiate the Bush administration's position that enemy combatants can be held indefinitely by U.S. authorities.
Justice Department officials are expected to argue that their decision to seek an indictment of Marri renders the Supreme Court case moot and that it should be dismissed, said the sources, who spoke on the condition of anonymity because the case is at a delicate stage.

The Post writes that the Justice Department and the White House declined to comment on pending criminal charges against Marri.

The Associated Press reports that Marri was first arrested in 2001.

The government says al-Marri is an al-Qaida sleeper agent who has met Osama bin Laden and spent time at a terrorist training camp in Afghanistan.
A legal U.S. resident, al-Marri has been held in solitary confinement at the brig since 2003.
After he was arrested as a material witness in late 2001, authorities first charged him with credit card fraud. Later, officials said he had strong links to al-Qaida terrorists, so President Bush declared him an enemy combatant and transferred him to the military brig.

The New Yorker reports that "an indictment would signal a major shift in legal policy from the Bush years."

It would also fulfill President Obama's campaign pledge to restore traditional American legal practices by treating terror suspects as common criminals, rather than stripping them of standard legal rights and classifying them neither as criminal defendants nor prisoners of war.
Obama has been forced to grapple with the Marri case because the American Civil Liberties Union has filed a challenge contesting the legality of his prolonged and indefinite detention. The Supreme Court agreed to hear the case this spring, requiring the Obama Administration to file papers stating its position by March 23rd. The federal grand jury in Peoria meets only once a month, so today is likely the last chance to indict Marri before the Supreme Court's deadline. An indictment would transfer Marri from military detention into the criminal-justice system, perhaps rendering the Supreme Court case moot.

Before the news of criminal charges against Marri, The New Yorker reported on Marri's case in greater detail.

In a press release, the ACLU's Jonathan Hafetz, who represents Marri, called the decision to charge Marri in criminal court "an important step in restoring the rule of law and is what should have happened seven years ago when he was first arrested." But Mr. Hafetz also said that the Supreme Court case should go forward, "because it must be made clear once and for all that indefinite military detention of persons arrested in the US is illegal and that this will never happen again."

But the Supreme Court commentary and analysis website SCOTUSblog suggests that the court may decline to hear the case now because it would be "hypothetical," the same rationale some Justices used in 2006 to decline to hear the detention case of Jose Padilla, a US citizen and detainee who was transferred from military custody to face criminal charges.

After allowing the military to transfer Padilla to civilian custody for criminal trial, the Court on April 3, 3006, refused without explanation to hear his appeal contesting his detention. Since Padilla was then in civilian custody, Justice Anthony M. Kennedy wrote in a separate opinion speaking for three members of the Court, any claim he might have about a violation of rights if returned to military custody was "hypothetical."
Kennedy also said that any ruling on the "fundamental issues" Padilla raised in challenging his military detention would be hypothetical. Three Justices — one fewer than the minimum needed — would have granted review (Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter).

But even if the Supreme Court does not hear the Marri case, the way the court chooses to dispose of it is still important. The US Court of Appeals for the Fourth Circuit had ruled that the president had the power to put a person legally in the US into indefinite military detention as an "enemy combatant." If the Supreme Court dismisses the Marri case, the Fourth Circuit's decision stays on the books and remains legally influential. If the court instead vacates and remands the case, the Fourth Circuit's decision effectively becomes void.

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