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Obama moves to avoid Supreme Court case in order to preserve indefinite detention of "terrorism" suspects

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Message Kenneth Theisen

On Friday, February 27, 2009 the Obama administration made a series of legal moves in order to protect the future use of indefinite detention for terrorism suspects picked up in the United States. It is also attempting to circumvent a Supreme Court hearing in this case which could possibly set a precedent limiting Obama and future presidents' power. The former president Bush must be proud of his successor, Barack Obama.

On Friday, Obama directed U.S. military officials to transfer Ali Saleh Kahlah al-Marri into the civilian custody of the Department of Justice.  Al-Marri is an alleged al Qaeda agent according to the federal government. Under the Bush regime he was arrested in 2001. Beginning in 2003 he was held in solitary confinement for five years in military detention in a South Carolina naval brig. At the time of his arrest he was a legal U.S. resident. Despite this, he was not afforded his right to be tried in a civilian court. The Bush regime had deemed him an "enemy combatant," not entitled to Constitutional due process. Al-Marri was detained incommunicado for 16 months of his incarceration and subjected to torture and other abuse according to the ACLU.

Ali Al-Marri is now facing criminal charges under the Obama administration. Al-Marri was just indicted in the U.S. District Court for the Central District of Illinois and charged with two counts of material support for terrorism.

At the same time that Obama issued his order to removed Al-Marri from military to civilian detention, Obama's solicitor general was asking the Supreme Court to dismiss al-Marri's challenge to the president's authority to detain people in the U.S. indefinitely and without charges. By moving al-Marri, the administration hopes to make his case moot (legally no longer necessary to be heard), requiring it to be dismissed. This avoids the possibility that the Supreme Court would issue a ruling limiting indefinite detention, without charges, in future cases involving alleged "enemy combatants" arrested in the U.S. On behalf of the Obama administration, Solicitor General Edwin Kneedler argued to the court, that there is no "certainty as to whether, or in what circumstances" the legal issues in this case will ever arise again.

Jonathan Hafetz is an attorney with the ACLU National Security Project and lead counsel in al-Marri's Supreme Court case. In response to the latest moves of the government he stated, "Despite this indictment, the Obama administration has yet to renounce the government's asserted authority to imprison legal residents and U.S. citizens without charge or trial.  We will continue to pursue Mr. al-Marri's case before the Supreme Court to make sure that no American citizen or lawful resident will ever again be subjected to such treatment. It is important that the Court hears Mr. al-Marri's case and rejects, once and for all, the notion that any president has the sweeping authority to deprive individuals living in the United States of their most basic constitutional rights by designating them 'enemy combatants.'"

But if the Obama's dismissal request is granted, future presidents will still allegedly have that authority. That is why the Executive Director of the ACLU Anthony D. Romero said, "The Obama administration must unequivocally state that it will not repeat the abuse of executive authority that occurred in this case to imprison other U.S. citizens and legal residents without charges or trial."

In 2007, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled that the government cannot hold individuals arrested in this country in military detention without charge. However, in July 2008, the full appeals court overturned that ruling in a narrowly divided decision. In the pending case of Al-Marri v. Spagone, the ACLU has asked the U.S. Supreme Court to overturn the full appellate court decision.

On April 27th the Supreme Court is scheduled to hear legal arguments in the case.  But if the dismissal is granted the case will not be heard. This is exactly why the Obama administration has done what it did with al-Marri.  It wants to avoid having to argue the case before the Supreme Court on its merits.  It would rather use procedural moves to keep the case out of the Supreme Court to avoid an unfavorable ruling. The ACLU will oppose dismissal.

The Supreme Court ordered al-Marri's attorneys to respond to the government request by March 3rd. In the less than two months that Obama has been in office, his administration has consistently done whatever it could to uphold the privileges of the "national security" state.  How long will people put up with this?  Eight years of similar policies under the Bush regime should have been enough. Why is the Obama administration following the lead of the Bush regime?  What will you do to reverse the reactionary political course started by the Bush administration and now continued by the Obama administration?

The ACLU's Supreme Court brief is available online at: www.aclu.org/safefree/detention/38405lgl20090121.html
More information about
Al-Marri v. Spagone, including legal documents, is available online at: www.aclu.org/safefree/detention/case_almarri.html

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Kenneth J. Theisen is veteran activist of movements opposing U.S. imperialism, its wars and domination of countries throughout the world. He wrote his first op-ed piece against the Vietnam war when he was only 12 and has been writing on various (more...)
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