High Court To Hear Enemy Combatant Case

The Supreme Court has agreed to hear a case early next year testing the power of the president to hold a person indefinitely in military custody. The case concerns Ali al-Marri, a Qatari citizen who was arrested seven years ago in Illinois and who remains in detention in South Carolina.

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MICHELE NORRIS, host:

This is All Things Considered from NPR News. I'm Michele Norris.

MELISSA BLOCK, host:

And I'm Melissa Block. The Supreme Court is once again stepping into a legal controversy in the Bush administration's War on Terror. Today the high court said it will decide whether foreigners who are legal residents in the U.S. can be picked up and held without charge indefinitely. NPR's Nina Totenberg reports.

NINA TOTENBERG: Ali al-Marri entered the United States with his wife and children from Qatar on September 10th, 2001. He was here legally to study for a master's degree. In the aftermath of 9/11, he was picked up and charged with credit-card fraud and lying to the FBI. But instead of trying him on those charges, the Bush administration declared him an enemy combatant and put him in the Naval Brig in South Carolina. He's been held there ever since subject to aggressive and, his defenders say, harsh interrogation. In the first 16 months he was held incommunicado without access to either lawyers or the Red Cross. The Bush administration contends that the president has the constitutional power to order such indefinite detentions of anyone seized here, whether a foreigner or a U.S. citizen. A federal appeals court in Richmond agreed, and today, the Supreme Court said it would take a fresh look. ACLU lawyer Jonathan Hafetz is one of al-Marri's lawyers.

Mr. JONATHAN HAFETZ (Counsel to the Petitioner, Al-Marri v. Puccuiarelli): Every American citizen should recognize that what's at issue in this case is the ability of the president to imprison someone based on some statement from a faceless government official, depriving them of their right to a criminal trial.

TOTENBERG: In 2004, the high court ruled that U.S. citizens captured on the battlefield cannot be subject to an open-ended, untested imprisonment. The al-Marri case involves a foreigner who was a legal U.S. resident, arrested at his Illinois home, not on a foreign battlefield. Although the Bush administration contends Al-Marri was an al-Qaeda sleeper agent, the fact is it has never won a Supreme Court victory on its detention policies after complete review. Indeed, with Barack Obama about to assume the presidency and the case not scheduled for a Supreme Court hearing until March at the earliest, the odds are that this case will never actually be heard. Mr. Obama, long a critic of the Bush administration's detention policies, could, without explicitly disavowing them, easily render this case mute by either reinstating the original criminal charges against al-Marri or, more likely, by sending him home to Qatar, where officials have publicly said they would take him back. Nina Totenberg, NPR News, Washington.

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