Supreme Court avoids ruling on preventative detention

WASHINGTON // The US Supreme Court will no longer hear arguments in the case of an alleged al Qa'eda operative who is challenging the legality of his near six-year detention as an "enemy combatant" without being charged with a crime. The nine-member court on Friday granted a request by the Obama administration to dismiss the pending appeal by Ali Saleh Kahlah al Marri over the right of the US to hold him without charge or trial. But the court also threw out as "moot" a lower court's ruling, by a federal appeals court in Virginia, that had upheld the government's authority to do that.

Mr al Marri, a dual national of Qatar and Saudi Arabia and a legal resident of the United States, has been detained at a naval facility in South Carolina since 2003. The Bush administration accused Mr al Marri - the only "enemy combatant" currently being held in the mainland US - of working for al Qa'eda and conspiring with Khalid Sheikh Mohammed, who has confessed to masterminding the Sept 11 2001 attacks.

However, no charges were filed against Mr al Marri until last month, when a federal grand jury handed down a two-count indictment. The Obama administration had previously signalled its intent prosecute at least some terrorism suspects in the regular court system. On the orders of the White House, Mr al Marri was released from military custody into civilian custody. In bringing the criminal charges, the justice department also asked the Supreme Court to dismiss his pending appeal, saying it was no longer valid, effectively allowing the new administration more time to fashion its own legal position on the controversial policy of "preventive detention".

The Supreme Court's decision means it will not hear the case, which was scheduled to begin next month, nor will it rule on whether the president has the power to detain terrorism suspects indefinitely - as George W Bush insisted he did. Mr Obama has not taken a clear position on the issue. The American Civil Liberties Union, which represents Mr al Marri, expressed disappointment that the challenge would not be heard. In a brief submitted to the Supreme Court last week, the New York-based group argued the case was not moot even though Mr al Marri had been formally charged and would be able to mount a defence in court.

ACLU lawyers said the appeal should go forward, in part because the government had not ruled out redesignating Mr al Marri an "enemy combatant" and potentially detaining him again without charge in the future. Still, the ACLU applauded the Supreme Court's move to vacate the lower court's ruling, which it had argued was unconstitutional. "While we would have preferred a Supreme Court ruling that US citizens and lawful residents detained in the US cannot be held in military custody as 'enemy combatants' without charges or trial, the Supreme Court nonetheless took an important step today by vacating a lower court decision that had upheld the Bush administration's authority to designate al Marri as an 'enemy combatant', " Jonathan Hafetz, the lead lawyer in the case, said. "Congress never granted the president that authority and the constitution does not permit it. We trust that the Obama administration will not repeat the abuses of the Bush administration, having now chosen to prosecute Mr al Marri in federal court rather than defend the Bush administration's actions in this case."

Mr al Marri, who arrived in the US in Sept 2001 on a student visa, was arrested in December of that year at his Illinois home as a material witness in the attacks on the World Trade Center and Pentagon. He was later indicted on charges of credit card and bank fraud and making false statements to the FBI. About a month before his scheduled trial in 2003, the Bush administration moved to have the indictment dismissed, declared him an "enemy combatant" and said he should be held in military custody as a threat to national security.

He was transferred to the naval brig, where he has been since. In announcing the criminal charges against Mr al Marri last month, the US attorney prosecuting the case, Rodger Heaton, said he had "committed horrific terrorist acts against our nation. As a result he will now face the US criminal justice system, where his guilt or innocence will be determined by a jury in open court." The ACLU alleges that Mr Marri was held "incommunicado" for 16 months and was subjected to "torture and other abuse".