The Supreme Court announced Friday it has granted review in al-Marri v. Pucciarelli, the next in a series of landmark cases testing the constitutionality of Bush administration detention policies in the war on terror. With argument likely in spring and a decision by late June, the announcement guarantees those policies will remain in the spotlight well into the Obama administration. How the new administration handles the case will also be closely watched.
At issue in the case is whether President George W. Bush had the authority to order the indefinite military detention in the United States of Ali Saleh Kahlal al-Marri based on the president's determination that he was an enemy combatant. Al-Marri is a Qatari native, legally in the United States, who was arrested in Illinois seven years ago. He has been in a Navy brig in Charleston, S.C., since 2003. John Pucciarelli, the named respondent in the case, is the commander in charge of the brig. The administration claims al-Marri had close contact with Khalid Sheik Muhammed, the mastermind of the Sept. 11, 2001, attacks, and was a "sleeper agent" of al-Qaida whose job was to plan future attacks.
A panel of the 4th U.S. Circuit Court of Appeals sided with al-Marri, but on en banc review, a divided full court ruled that the president did have the authority to hold al-Marri in military detention.
In a statement American Civil Liberties Union lawyer Jonathan Hafetz, al-Marri's lawyer, said, "We are pleased that the Supreme Court has accepted Mr. al-Marri's case for review. The president has deviated from the principles on which the United States and its Constitution were founded: that individuals cannot be imprisoned for suspected wrongdoing without being charged with a crime and tried before a jury. We are confident that upon review, the Court will strike down this radical -- and unnecessary -- departure from our nation's most basic values."
In a separate statement, Sharon Bradford Franklin of the non-partisan Constitution Project said, "The Supreme Court's decision to grant review will compel the incoming Obama administration to quickly focus on U.S. detention policy. We hope that President-Elect Obama will resoundingly reject the current administration's breathtaking claim that the United States may hold a civilian in military detention indefinitely. The new administration should either charge or release Mr. al-Marri."
This article first appeared on The BLT: The Blog of Legal Times.