Justices accept enemy combatant case (Dec. 5, 2008)

The Supreme Court has agreed to decide whether a legal resident suspected of war crimes can be detained and held indefinitely without charges on U.S. soil.

The case concerns the detention of Ali al-Marri, who arrived in the United States with his family the day before the Sept. 11 terrorist attacks. He came to the United States on a student visa in order to attend a master’s program at Bradley University in Peoria, Ill.

Three months later, the FBI arrested al-Marri as part of its investigation into the terrorist attacks, and prosecutors indicted him on charges of credit card fraud and lying to the bureau. In June 2003, the Bush administration said al-Marri had vital information about future terrorist plots, declared him an enemy combatant and ordered him transferred to a military custody where he has remained for the last five years.

In June 2007, a three-judge panel on the Fourth U.S. Circuit Court of Appeals ruled 2-1 that the Bush adminstration lacks the legal authority to detain al-Marri without charge. The three judges ruled unanimously that al-Marri is entitled to traditional habeas corpus protections, giving him the right to challenge his detainment in a federal court.

In August 2007, the court granted the government’s petition for rehearing en banc.
In July 2008, the full court issued a divided opinion, which upheld the administration’s right to hold Al-Marri as an enemy combatant, but also ruled that he was entitled to refute his detention in federal court.

On Dec. 5, the Supreme Court accepted the case for review. Briefs will be due after President-elect Barack Obama takes office in January 2009, and oral arguments are expected to take place in March.

Question presented: Whether Congress, in passing the Authorization for Use of Military Force after September 11, authorized the indefinite military detention of a legal immigrant seized on domestic soil whom the government alleged to have conspired with al Qaeda to carry out attacks against the United States.