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Court could give Obama early test on detentions

By Mark Sherman and Meg Kinnard
Associated Press / November 23, 2008
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WASHINGTON - The Supreme Court could hand President-elect Barack Obama a delicate problem in the coming days: What to do with a suspected Al Qaeda sleeper agent who is the only person detained in this country as an enemy combatant?

Ali al-Marri has been held in virtual isolation in a Navy brig near Charleston, S.C., for nearly 5 1/2 years. He is challenging President Bush's authority to subject a legal resident of the United States to indefinite military detention without being charged or tried.

The justices are expected to consider Marri's case when they meet in private on Tuesday. If they agree to hear arguments, over the Bush administration's opposition, they could say so the same day.

Bush's legal team has claimed authority for such detentions and has argued aggressively for it in court papers.

But the case would not be scheduled for argument until sometime in the late winter or early spring, during Obama's first months in office.

Marri's fate will wind up in Obama's hands in any event, but a decision by the court to hear his challenge would force the new president to confront the issue quickly.

In the event the dispute makes it as far as a court hearing, the new administration's lawyers would have to argue the same basic position urged by Bush's team, despite Obama's repeated criticism during the presidential campaign that Bush was too aggressive in asserting executive authority. Or Obama's lawyers could reverse course in the middle of a complex legal dispute that would essentially have the new president arguing for limits on his powers.

Either way, "it will be a very tough position for the new administration," said Sharon Bradford Reynolds, senior counsel at The Constitution Project, a bipartisan legal think tank that wants the court to hear the case and rule for al-Marri.

But Obama would have other, potentially more palatable, options that would almost certainly head off a hearing in the Supreme Court.

He could send 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 US citizen Jose Padilla rather than have the high court take up the matter. Padilla, who was held in the same brig as Marri, was convicted in a criminal trial in federal court in Miami.

Brad Berenson, a former Bush administration lawyer who went to law school with Obama at Harvard, said the new president will probably discover that Marri's case is not easily resolved.

"Al-Marri is one of those cases where the rhetorical necessities of the campaign are likely to collide with the security necessities of governing," Berenson said.

Obama also is weighing what to do with the roughly 250 prisoners who are being held at Guantanamo Bay.

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