Marri case is just a taste of hard choices waiting for Obama
After having criticized President Bush for his broad assertion of power to detain terrorism suspects, Barack Obama is about to face a moment of truth.
The truth will come in the form of one Ali Saleh Kahlah al-Marri, a Qatari man who was lawfully in the United States, studying for a master's degree at Bradley University in Illinois, when the FBI picked him up and later, on Bush's authority, tossed him into a Navy brig, where he remains.
Marri's is the kind of case that has made liberals very angry about Bush's alleged lack of respect for the Constitution: a father of five children imprisoned without charges, solely on the president's say-so.
But his is also the kind of case that makes conservatives very worried that Obama will jeopardize national security in the name of due process. The FBI has claimed that Marri is a committed terrorist, perhaps Al Qaeda's leading operative in the United States. The Bush administration says Marri met personally with Osama bin Laden and 9/11 mastermind Khalid Sheikh Mohammed, and had information about Al Qaeda terrorism plots on his laptop.
Last week, the Supreme Court agreed to hear Marri's challenge to Bush's authority to hold terror suspects indefinitely, a power that Bush says is inherent in Congress's grant of "wartime" authority to the president after 9/11. But before the Supreme Court hears Marri's challenge, Obama will become president, and he can change Bush's policy with a simple signature. Marri would then either go free or face charges.
It's not clear how many charges Marri could face; before Bush stepped in and held him as a terror suspect, prosecutors had charged him with credit card fraud and lying to the FBI. But even if he is convicted on those relatively minor offenses, he would eventually go free.
Were Obama to allow Marri to walk out the door, it would be a stunning development. But if Obama kept on holding him, it would be a serious blow to civil libertarians: an assertion that Obama, like Bush, believes the president can hold terror suspects indefinitely without bringing charges.
The Supreme Court's decision to hear the case may give Obama a politically face-saving way out. He could keep holding Marri on the grounds that the court, not he, should establish the parameters of the president's authority in detaining suspects. Obama's Justice Department would be obliged to defend Bush's broad interpretation of presidential authority, but there's little doubt that the court would try to establish limits.
Such a development might not please Obama's liberal supporters, but it wouldn't alienate them, either: He would be following the judgment of the court.
No matter how it's resolved, however, the Marri case is just the tip of the iceberg - the first of a series of decisions that Obama will have to make on the president's powers to authorize wiretaps, detain prisoners, and approve harsh interrogations. And some of those decisions will be made in secret, so it could take years before enough people became aware of them to put together legal challenges.
On the campaign trail, Obama condemned Bush's broad-brush policies in these areas, and suggested that he would be far more conscious of civil liberties.
Still, Obama's point man is likely to be his attorney general-designate, Eric Holder, whose record is moderate to conservative on these issues. Holder was among the relatively few Democrats who argued that the Geneva Conventions should not apply to terrorism suspects, since they are not part of a formal army. More recently, Holder called for closing the Guantanamo Bay prison, but his position seemed to be based more on concerns that the prison was harming America's image than that people were being held illegally.
In the end, though, the decisions will belong to Obama, who is himself a legal scholar. But conservatives have long insisted that there's an enormous difference between the way these issues play out in the classroom, and in the real world of fighting terrorism.
Like the Guantanamo Bay colonel played by Jack Nicholson in the 1992 movie "A Few Good Men," conservatives believe that liberals, when faced with the reality of national security, "can't handle the truth."
Obama is about to find out.
Peter S. Canellos is the Globe's Washington bureau chief. National Perspective is his weekly analysis of events in the capital and beyond. He can be reached at canellos@globe.com. 