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Detainee Al-Marri indicted on two courts: 1) Conspiracy to Provide Material Support and Resources to a Foreign Terrorist Organization, and 2) Providing Material Support and Resources to a Foreign Terrorist Organization

Ali Saleh Kahlah al-Marri

Ali Saleh Kahlah al-Marri

The two-count indictment of Ali Saleh Kahlah Al-Marri was unsealed today. Al-Marri, it will be recalled, was arrested in 2001 on a material witness warrant relating to an FBI investigation of the attacks of September 11, 2001. In 2002, he was charged with several criminal offenses, but before the trial could begin, he was found by President Bush to be an “enemy combatant” and transfered to a U.S. Naval brigg in South Carolina. Al-Marri filed a petition for a writ of habeas corpus challenging the lawfulness of his detention. Ultimately, the Fourth Circuit Court of Appeals, sitting en banc, ruled that if the Government’s claims about Al-Marri were true, the president had the authority to detainee him as a enemy combatant, but that the Government had not afforded him an opportunity to sufficiently challenges those claims. Al-Marri then petitioned the Supreme Court for a writ of certiorari, which the Supreme Court granted, with oral argument set for April 27.

The indictment provides:

COUNT 1
Conspiracy to Provide Material Support and Resources to a
Foreign Terrorist Organization (al-Qaeda)

Beginning on an unknown date, but at least as early as July 2001, and continuing
through on or about December 12,2001, at Peoria, Illinois, in the Central District of
Illinois, and elsewhere, the defendant,
ALI SALEH KAHLAH AL-MARRI,
knowingly conspired with others, unindicted herein, to provide material support and
resources, as that term is defined in Title 18, United States Code, Section 2339A(b)(I),
namely, personnel, to a foreign terrorist organization, namely al-Qaeda, which was
designated by the Secretary of State as a foreign terrorist organization on October 8,
1999, pursuant to Section 219 of the Immigration and Nationality Act, and has remained
so designated through and including the present time.
All in violation of Title 18, United States Code, Section 2339B(a)(l).

COUNT 2
Providing Material Support and Resources to a
Foreign Terrorist Organization (al-Qaeda)

From on or about September 10,2001, and continuing through on or about
December 12, 2001, at Peoria, Illinois, in the Central District of Illinois, and elsewhere,
the defendant,
ALI SALEH KAHLAH AL-MARRI,
knowingly provided material support and resources, as that term is defined in Title 18,
United States Code, Section 2339A(b)(l), namely, personnel, to a foreign terrorist
organization, namely al-Qaeda, which was designated by the Secretary of State as a
foreign terrorist organization on October 8, 1999, pursuant to Section 219 of the
Immigration and Nationality Act, and has remained so designated through and including
the present time.
All in violation of Title 18, United States Code, Section 2339B(a)(l).

In the meantime, as SCOTUSblog reports,

The Obama Administration asked the Supreme Court on Friday afternoon to end the case of an individual captured and held in the U.S. as a terrorism suspect, but did not tell the Court that it is abandoning the claim that it has power to do so.  Instead, it argued that the planned release of Ali Saleh Kahlah Al-Marri from a military jail, for criminal prosecution in civilian court, means there is no longer any live controversy over his detention.

Simultaneously, the Solicitor General’s office asked the Court to approve Al-Marri’s release into civilian custody, even though it argued that the Court’s permission was not necessary.  These developments followed the public release Friday morning of a two-count criminal indictment of Al-Marri (see this post).

Indicating that it probably will act swiftly on the two requests, the Court asked Al-Marri’s lawyers to respond to both by the end of the day on Tuesday, with any government reply due on Wednesday.  That could mean the Justices could respond next week, or consider it in their private Conference next Friday.

The motion to end the case is here, and the application (08A755) is here.

The Administration’s motion suggested two alternatives: dismiss the case for lack of jurisdiction because the specific legal dispute will end with Al-Marri’s release by the military — a move that would leave the detention power unaltered because it would leave intact a Fourth Circuit Court decision upholding that authority — or vacate the Fourth Circuit’s decision and end the case as “moot.”

But, continues SCOTUSblog,

Al-Marri’s lawyers had noted earlier in the day that, despite Al-Marri’s indictment, the Administration had not yet renounced “the asserted authority to imprison legal residents and U.S. citizens without a charge.”  In the government’s new filings in the Court, there was no such indication.

Instead, the document made two points: first, it said that the government had made “a change in policy as to” Al-Marri, and thus there is only a “hypothetical contigency” that he might in the future be detained again by the military, and, second, it said that “different circumstances” would exist in the future and contended that “there is no guarantee that future detention would be implemented in the same manner or based on the same authority.”

The second point did seem to imply that detention policy could change at some point, and that appeared to be related to a statement later in the document saying that there can be no certainty that the issues over detention policy raised in Al-Marri’s case “will arise again in the future,” noting that the President “has ordered a comprehensive review of all military detention policies worldwide.”

The government cautioned the Court against deciding the presidential power questions, calling them “extremely sensitive constitutional issues.”  It added: “Caution is particularly appropriate here because upon [Al-Marri’s] release and transfer, there will be no remaining individuals detained as enemy combatants on United States soil.”  Thus, it went on, a ruling in Al-Marri’s case would not provide “guidance to any other” individuals in Al-Marri’s situation.

“Adjudication of the important and sensitive questions surrounding military detention should be addressed only if necessary, in the context of a live case involving concrete circumstances,” the motion concluded.

What will the Supreme Court do? I hope the Court will rule that the case is moot and vacate the decision of the Fourth Circuit. I think it is important that the court not let stand the decision of the Fourth Circuit regarding presidential detention authority.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.