Pat Dollard | Young Americans

(FOX)

Supreme Court to Hear Case of Enemy Combatant

The Supreme Court will take up the case of the only enemy combatant to be seized and held on U.S. soil, in an effort to determine whether the administration may detain such combatants indefinitely.

WASHINGTON — The Supreme Court agreed Friday to decide whether the president may order that people picked up in the United States be detained indefinitely and without criminal charges.

The court is undertaking a fresh review of the Bush administration’s aggressive use of preventive detention for suspected terrorists. The administration asserts that the president has the authority to order the military to detain anyone suspected of being an Al Qaeda member.

The administration’s policy is being challenged by Ali al-Marri, a Qatar native who was seized in the United States and is the only enemy combatant currently being held on U.S. soil. The government says al-Marri is an Al Qaeda sleeper agent.

Al-Marri, represented by the American Civil Liberties Union, says he cannot be imprisoned without charge or trial. He was arrested in Peoria, Ill.

Al-Marri has been held in virtual isolation in a Navy brig near Charleston, S.C., for nearly 5 1/2 years.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., said in a split decision that the president has such power, but that al-Marri must be given the chance to persuade a federal judge that he is not an enemy combatant.

The administration argued that al-Marri’s case should first go to federal district court in South Carolina, instead of to the Supreme Court.

Al-Marri said that the case was of such constitutional importance that it should be heard by the high court now — and the justices apparently agreed.

Jonathan Hafetz, al-Marri’s ACLU lawyer, said he was gratified by the court’s action. “The President’s claim that he can seize people living in the United States and imprison them for life without trial represents one of the most dangerous exercises of executive power possible,” Hafetz said.

The case will not be argued before March, meaning that President-elect Barack Obama will be in the White House and decisions about al-Marri will be made by him.

During the presidential campaign, Obama repeatedly criticized President George W. Bush for being too aggressive in asserting executive authority.

Brooke Anderson, chief national security spokeswoman for the Obama transition team, declined to comment on the case.

“President-elect Obama will make decisions about how to handle detainees as president when his full national security and legal teams are in place,” she said.

It is rare for an incoming administration to reverse course on a case before the high court, although it does happen.

The new administration has options if it wishes to avert a Supreme Court hearing.

It could send al-Marri home to Qatar or transfer him back to civilian court to face criminal charges. The government followed the latter path in the case of U.S. citizen Jose Padilla rather than have the high court take up the matter. Padilla, who was arrested in Chicago and held in the same brig as al-Marri, was convicted in a criminal trial in federal court in Miami.

Obama also is weighing what to do with the roughly 250 foreigners who are being held at the U.S. naval base at Guantanamo Bay, Cuba. The court has ruled that those men must be able to argue for their freedom before a federal judge, but it has not questioned the authority to seize and hold them.

Al-Marri arrived in the U.S. with his wife and five children on Sept. 10, 2001 — one day before the terrorist attacks in New York and Washington. He entered the country on a student visa seeking a master’s degree in computer science from Bradley University, a small private school in Peoria, Ill.

He was arrested three months later as part of the FBI’s investigation of the Sept. 11 attacks. Prosecutors indicted him on charges of credit card fraud and lying to the FBI, not terror charges.

But in June 2003, Bush said al-Marri had vital information about terror plots, declared him an enemy combatant and ordered him transferred to military custody.

The government says al-Marri trained in Al Qaeda camps and met with Osama bin Laden and Sept. 11 mastermind Khalid Sheikh Mohammed. His laptop was filled with information about poisons, coded e-mail messages and lectures by bin Laden and others on the importance of martyrdom, the government says.

Civil liberties groups were joined by former Attorney General Janet Reno, former FBI Director William Sessions, former generals and other ex-government officials in urging the court to review the case.

They said the justices should overturn the appeals court ruling backing the president’s authority to detain terrorism suspects in the U.S. without charges.

The case is al-Marri v. Pucciarelli, 08-368.

Court to rule on domestic detention

Friday, December 5th, 2008 12:58 pm | Lyle Denniston

(SCOTUS BLOG)

Taking on another historic constitutional fight over war-on-terrorism powers, the Supreme Court agreed on Friday to rule on the President’s authority to order the seizure in the U.S. and long-term detention of an individual suspected of war crimes but not charged. The Court agreed to hear, and probably will decide by next summer, the case of Al-Marri v. Pucciarelli (08-368), involving the only individual captured inside the U.S. and still being held in this country for an indefinite period, with no sign of any criminal prosecution.

The government’s brief is not due until after President-elect Barack Obama takes office, so his administration will have the option of changing the government’s present position in defense of the detention authority. At the earliest, the government’s brief would not be filed for 75 days — that is, until about Feb. 18. The Court did not expedite the briefing schedule. The case is now scheduled for argument in late March.

If Obama should decide to forego the claim of power that is at issue, that could mean the case would come to an end in the Court without a ruling by the Justices. In that event, the Justices would probably send the case back to lower courts to determine what happened next to the Qatari national who is involved, Ali Saleh Kahlah al-Marri. He is presently being held solely on the basis of a presidential declaration that he is an “enemy combatant.”

If the new administration opted to do so, it conceivably could charge him with crimes and prosecute him either in military or civilian courts. He probably would not be released in the meantime, if prosecution were the decision the government made.

The Fourth Circuit Court, in a widely splintered decision last July, upheld the President’s authority to order the military detention inside the U.S. of an individual suspected of terrorist links, on the basis of a government official’s assertion that al-Marri had come to the U.S. the day before the Sept. 11, 2001, terrorist attacks to become a part of a “sleeper cell” to carry out terrorist actions inside the country. The Circuit Court relied on Congress’ passage of a resolution after the Sept. 11, 2001, terrorist attacks, authorizing the use of military force to deal with those who attacked or supported the attacks. It did not rule on a separate claim of detention authority under the President’s commander-in-chief powers.

The Circuit Court also went on to rule that al-Marri was entitled to a more thorough hearing in District Court on his challenge to his seizure and prolonged captivity. The Justice Department had urged the Supreme Court not to hear al-Marri’s challenge at this point, but instead to allow the District Court proceeding to continue. The Court, however, granted review of the issue that al-Marri had raised — a direct test of presidential authority.

The question at issue is: “Does the Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorize — and if so does the Constitution allow — the seizure and indefinite military detention of a person lawfully residing in the United States, without criminal charge or trial, based on government assertions that the detainee conspired with al Qaeda to engage in terrorist activities?”

Al-Marri was seized at his home in Peoria, Ill., where he was a graduate student; he was later charged with a crime, then was pulled out of the civilian court system on President Bush’s orders. He has been held since June 2003 in military custody, most of that time at the U.S. Navy jail or “brig” in Charleston, S.C.

In some ways, the al-Marri case could be the most important of a series of Supreme Court rulings since 2004 growing out of the Bush Administration’s global response to terrorism. That is because the power at issue not only could affect aliens in the country, but U.S. citizens, as well. It is at least as much a direct challenge to presidential authority as was the Court’s 2006 decision overturning the presidentially ordered military tribunal system for trying war crimes cases.

Besides agreeing to hear al-Marri’s challenge, the Court voted on Friday to hear a second case, seeking clarification of the instructions that judges must give to juries in job discrimination cases when the employer had a valid as well as an illegitimate reason for a workplace decision — a so-called “mixed-motive” case. The new case is Gross v. FBL Financial Services, Inc. (08-441), involving an Iowa company executive who claimed he was passed over for a promotion that went to a woman who was younger, in violation of the Age Discrimination in Employment Act. This case, too, is due to be heard in March.

Under employment discrimination law, a worker claiming bias on the job has the burden of proof throughout the case. If the case involves a mixed motive on the part of the employer, however, the worker’s task is eased somewhat. If the worker shows that a biased motive was one factor in denying him or her a raise, a promotion, or even a job, the employer then must prove that it would have taken the same action even without that illegal motive.

The question the Court will now consider is what kinds of evidence the worker must have in order to demonstrate a biased motive was a factor. In this case, the Eighth Circuit ruled that, in an age bias case, the worker must have “direct evidence” of the biased motive — that is, proof of a specific link between that motive and the action taken by the employer.

The Supreme Court, in a 2003 case, Desert Palace v. Costa, ruled that a worker is not required to have that strong evidence in a mixed-motive case under Title VII — the general law against workplace discrimination based on race, sex, religion or national origin. The Court in that ruling, however, left open the issue of whether it would relax the proof requirement in non-Title VII cases — such as an age bias cas

That is what Jack Gross, a former vice president of FBL Financial Services, asked the Court to decide. He had won a $46,945 verdict on his claim of age discrimination. The Eighth Circuit overturned that verdict, and ordered a new trial, because the judge had given the mixed-motive instruction to the jury without Gross having offered direct evidence of the illegitimate motive.