Submitted to a Candid World

What would John Yoo do?

If you visited the site over the weekend, you’ll recall a deluge of conspiracy theorists racking their brains for a theory – any theory – that would make Barack Obama constitutionally incapable of assuming the office of the Presidency. One of their ilk, Leo Donofrio, went as far as to push a poorly-pled lawsuit all the way to the Supreme Court, where it was presumed rejected as of Friday rejected. For real court-watchers, though, Friday’s news was much bigger, with significantly more interesting implications: the Court accepted certiorari of Al-Marri v. Pucciarelli, literally the last Supreme Court terror case of the Bush era, and the first of the Obama era.

Mr. al-Marri’s story, like that of so many erstwhile detainees, is a true tragedy. Ali Saleh Kahlah al-Marri, a citizen of Qatar, arrived with his family in the United States on September 10th, 2001 (talk about bad timing) to complete a master’s degree at Bradley University, in Peoria, having previously attained his undergraduate degree there. It was never to be. Shortly after 9/11, al-Marri was arrested for alleged financial crimes. The arrest was a pretext: it never came to trial, and in 2003, while still in detention, a nameless, faceless bureaucrat identified al-Marri as an “enemy combatant,” and he’s been bouncing between cramped, inhumane navy brigs ever since.

(The late, great Bryant Park Project (NPR BPP) gives a more snarky version of al-Marri’s story. We miss you, Alison Stewart!)

Al-Marri finally got his day in Court this last spring, after seven years in detention. Against assertions by the Bush Justice Department that al-Marri could be detained indefinitely without charge – a stance that, from any other office, would be shocking – the Fourth Circuit confirmed Bush’s ability to detain combatants, but required that the administration afford detainees some limited right to due process.  Of course, the dignity of Bush’s Justice Department could hardly suffer the indignity of being forced to do prove a case: they took an appeal, and the Supreme Court took review of the question, to determine the narrow issue of:

[W]hether Congress, in passing the Authorization for Use of Military Force after September 11, authorized the indefinite military detention of a legal immigrant seized on domestic soil whom the government alleged to have conspired with al Qaeda to carry out attacks against the United States.

Given the Court’s holding in Boumediene last term, and Justice Kennedy’s increasing skepticism of the administration’s position on national security matters, I would expect the Court to affirm the Fourth Circuit’s holding. But this case has a twist. By the time al-Marri’s case gets to the Supreme Court, the Department of Justice will be firmly in the hands of Eric Holder, Barack Obama’s nominee for Attorney General, a man who just recently promised to completely revamp policy towards suspected terrorist detainees.

President Obama, and Attorney General Holder, should follow through on this promise, starting with al-Marri. Obama cannot afford to let indefinite detention, extraordinary rendition, and torture “enhanced interrogation” continue a single day into the new administration. And, because detention policy falls within President Obama’s commander-in-chief powers, it doesn’t have to: Obama can prepare an executive order to issue on day one repudiating indefinite detention, and providing speedy, effective, and fair review of combatant designations (he needn’t, and shouldn’t, go so far as to provide full federal criminal process). With that issue resolved, Obama’s Justice Department could enter into negotiations with Al-Marri, to stay or dismiss his case pending a fair resolution, and compensate him for the injustice of his protracted detention. With any luck, and diligence, Pucciarelli v. Al-Marri could be moot by the time the Supreme Court was prepared to hear oral argument.

Of course, Obama (per General Holder) could always play hardball, and continue to prosecute the appeal against al-Marri, with the full intention of losing the case just to create a favorable prcedent that would force all future American presidents to foresake indefinite detention. It’s a nice thought, but it could be risky: there’s always the chance Scalia, Thomas, Alito, Roberts, and Kennedy would call his bluff. And can we as a people let al-Marri languish longer in detention, just for a political stunt?