Supreme Court takes another detention case

The Supreme Court announced that they would hear an appeal from Qatari national Ali al-Marri, a case that may again change the way the nation protects itself.  Marri has been held without charges for five years in a Navy brig after being arrested in the US as an al-Qaeda sleeper agent.  His lawyers have attempted to force the government to try him or release him, and they have an argument:

The U.S. Supreme Court said on Friday that it would decide whether President George W. Bush can order the indefinite imprisonment in the United States of an al Qaeda suspect without charging him.

In the latest test of Bush’s war-on-terrorism policies, the nation’s highest court agreed to hear an appeal by a Qatari national, Ali al-Marri, the only foreign national currently being held in the United States as an “enemy combatant.” …

After Bush designated Marri an “enemy combatant” in June of 2003, he has been held in solitary confinement in a U.S. Navy brig in Charleston, South Carolina without being charged.

Marri’s attorneys appealed a U.S. appeals court’s ruling in July that the U.S. Congress gave Bush the power to detain Marri as part of its authorization for use of military force after the September 11 attacks by al Qaeda in 2001.

They said the law authorizing military force and the U.S. Constitution do not allow for the indefinite military detention of a person lawfully residing in the United States, without criminal charges or a trial.

The key in this case lies in Marri’s status prior to his arrest.  Unlike the people held at Guantanamo Bay, Marri was arrested on US soil while living here legally as a resident alien.  The Bush administration has held him on US soil.  Both conditions would appear to give Marri the same Constitutional protections as any other legal resident (and in some cases, even illegal aliens).

Most of us want to support an aggressive policy in the war on terror, but this sounds like a step too far.  The Constitutional protections of habeas corpus should not apply to unlawful combatants seized abroad, but they should apply to legal residents and citizens of the US arrested on American soil.  If the executive branch has the power to designate citizens and resident aliens enemy combatants without any due process, what limitations does the executive have on its powers?  Literally anyone could get seized with that kind of designation without hope of challenging the executive to produce evidence.

We want terrorist sleeper agents captured, of course, but the government needs some sort of check to make sure that’s who we’re warehousing.

Interestingly, Barack Obama has refused to take a position on this case.  His Department of Justice will have to argue it, since the court will hold its hearing in March.  Will this case get withdrawn, or will Obama see it through to the final appeal?  Given his status as a Constitutional law scholar, one might think Obama would have an opinion on this now.