Today, the Obama administration unsealed
the criminal indictment of Ali Al-Marri, the only man being held in indefinite military detention as an enemy combatant on US soil. Until yesterday, the case was scheduled to be argued
before the Supreme Court, and would have likely answered one of the biggest
remaining questions in the War on Terror cases: who exactly is an enemy combatant.
The administration has requested that the
Supreme Court dismiss the pending case, and when the case is dismissed, Al-Marri will be transferred from military detention to the custody of the DOJ, where he
will be prosecuted using American standards of justice. Attorney General Eric Holder said today, "In
this administration, we will hold accountable anyone who attempts to do harm to
Americans, and we will do so in a manner consistent with our values." The change from indefinite military detention
to criminal prosecution is applauded by many, including Al-Marri’s at the ACLU,
but interestingly, the ACLU opposes the administration’s motion to dismiss the
pending Supreme Court case.
There
are three potential reasons the Obama administration wisely chose not to argue Al-Marri in the Supreme Court. First, a government win in this historic case
would create the wrong legacy for the Obama administration, and losing it wouldn’t
be much better. Second, Obama has smartly elected to argue this issue on a record of his
own making, not that of the Bush administration. Third, not arguing the case sends the right
message to the world: the Obama administration adheres to the rule of law.
How important is this case? On the
surface, it is only about one person – Al-Marri – who is the only person
declared an enemy combatant and held in indefinite military detention on US soil. But the legal issue at stake, who
precisely is an enemy combatant, is the lynchpin of not only Al-Marri’s case,
but all the War on Terror detention cases, including detainees at Guantanamo. Moreover, it affects every American citizen,
as the law that applies to Al-Marri will apply to us too: if the Supreme Court
holds that Al-Marri can be declared an enemy combatant and held indefinitely
with minimal due process, here in America,
the same will be true for all Americans.
The first reason Obama may have
chosen not to argue Al-Marri, is that
a Supreme Court opinion in the case, no matter what the outcome is, would be a
historic opinion and an early harbinger of Obama’s legacy in this very
difficult and contentious intersection of law, war, detention, and civil
liberties. Predicting the Supreme Court’s outcome is tricky at best, but if the
administration prevailed and the Supreme Court affirmed Al-Marri’s military detention,
the victory would have been won by re-arguing the Bush administration’s
positions – the very positions against which Obama campaigned. That simply
cannot be the legacy he wishes to leave, and arguing this case leaves no other
option. If the government were to lose,
well, he will have pursued Bush’s positions, and lost. Perhaps better for his legacy in the long
run, but hardly a desirable outcome.
Second, letting go of this case
would permits Obama to take the issue up in the Supreme Court on a record of
his own making. The record in Al-Marri may not have been looked kindly
upon by the Justices, who have become understandably skeptical of the Bush
administration’s legal positions. The critical issue in the case, the
definition of enemy combatant, is pending in many District Court habeas cases,
where they will be fully litigated. If it happens that the District Court cases
are appealed up to the Supreme Court, then Obama can argue the case on a record
he made himself; his administration need not be put in the undesirable position of
defending Bush administration policies in the highest court of the land.
Third, and most importantly, not
arguing Al-Marri sends the right
signal to the world: Obama has broken from the Bush administration, and shown
that the new DOJ doesn’t play duck and run in criminal prosecutions, as the
Bush administration did in Al-Marri.
Putting Al-Marri in a criminal trial demonstrates Obama’s fidelity to the rule
of law and the American justice system that he has said he will use for terrorism prosecutions,
even if later chooses to hold some other terrorist suspects in military
detention
Despite how welcome the Supreme
Court’s guidance would be on the definition of enemy combatant to those who
follow and litigate the issue, the Obama administration has made the right move. Whether
it is because of the legacy arguing this historic case would create, the fact
that he will litigate this issue and can argue it in the Supreme Court on merits
of his own making, or because he wanted to demonstrate to
the world that his administration adheres to the rule of law, today Obama has taken
an important step towards a corrected litigation strategy in the War on Terror
cases. Change has come to the War on Terror.