Alleged al-Qaida sleeper agent Ali Al-Marri is now facing criminal charges in civilian court, but the Obama administration is refusing to rule out the future use of indefinite detention for terrorism suspects picked up in the United States.
The administration urged the Supreme Court Friday to dismiss al-Marri's challenge to the president's authority to detain people in the U.S. indefinitely and without charges.
Al-Marri was the only person being held inside this country without being charged, the administration said in court papers, and President Barack Obama "has ordered a comprehensive review of all military detention policies worldwide."
The transfer signals that Obama is likely to handle accused terrorists in a significantly different way from the Bush administration's aggressive use of preventive detention.
Still, rather than foreclose the use of presidential power or risk an unfavorable court decision that might bind Obama or a successor, acting Solicitor General Edwin Kneedler told the court, there is no "certainty as to whether, or in what circumstances" the issue will arise again.
Al-Marri has been held in a Navy brig outside Charleston, S.C., for more than five years since President George W. Bush declared him an enemy combatant.
He will now be transferred to Peoria, Ill., to face trial in a civilian court on a charge of providing material support to al-Qaida and a related conspiracy count. The charges carry a maximum prison sentence of 15 years each.
His lawyer Jonathan Hafetz called the indictment "an important step toward restoring the rule of law," and said he was glad his client's guilt or innocence will now be decided in a courtroom.
But Hafetz called on the high court to hold onto al-Marri's case and reject the sweeping assertion of presidential authority.
"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," Hafetz said.
The court is scheduled to hear arguments in the case on April 27.
The administration acted quicky to indict al-Marri in civilian court so that it could seek dismissal of the Supreme Court case without having to file a legal brief that either would defend the Bush administration's position or abandon it. Neither prospect was especially appealing to the young administration, which also has moved cautiously on other legal matters involving national security issues.
The court asked al-Marri's lawyers to respond by Tuesday, making it possible that the justices could come to a decision at their private conference on March 6.
Several court watchers predicted the justices would grant the government's request because moving al-Marri out of military custody and into civilian court is precisely what he asked for.
"The odds are the Supreme Court is going to let this go," said Thomas Goldstein, a Washington lawyer who argues before the court and follows it closely.
The court reacted in similar fashion three years ago, turning down the case of Jose Padilla, the U.S. citizen alleged to be part of a plot to set off a radiological "dirty bomb" in the United States.
Padilla's lawyers had argued that the justices should hear his case even though he had been transferred from the same brig as al-Marri to face criminal charges in Miami.
Three justices — Stephen Breyer, Ruth Bader Ginsburg and David Souter — said the court should have heard Padilla's case anyway. It "raises a question of profound importance to the nation," Ginsburg said.
Jonathan M. Freiman, a lawyer in New Haven, Conn., who represented Padilla, called al-Marri's transfer "a calculated political move to avoid taking a position" in front of the high court.
"What the Bush administration did with Padilla, the Obama administration is trying to do with al-Marri. Transferring al-Marri out of the brig is the right thing to do. Moving to dismiss the case is not," he said.
Padilla eventually was convicted of conspiring to support Islamic extremists around the world, charges unrelated to the "dirty bomb" allegations.
Al-Marri's sparse, two-page indictment appears more closely related to the reasons given for his detention in the brig.
Obama has ordered the military to turn al-Marri over to the Justice Department, although he will remain in military custody until the Supreme Court signs off on the transfer.
The government has said al-Marri is an al-Qaida sleeper agent who has met Osama bin Laden and spent time at a terrorist training camp in Afghanistan.
A legal U.S. resident when he was arrested, al-Marri has been held in solitary confinement at the brig since 2003.
Al-Marri was arrested in late 2001 as part of the FBI's investigation of the Sept. 11 attacks. Prosecutors at first indicted him on charges of credit card fraud and lying to the FBI, not terror charges.
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.