The Curious Case Of Ali Al-Marri

(GETTY)

There is no real mystery about why the Obama Administration chose the al-Marri case, and chose now, to mark its first material divergence from the terror law tactics and strategies of its predecessor. (Read this brilliant piece by Jane Mayer of The New Yorker for background). First, there was the matter of the calendar. The government had to tell the Supreme Court by March 23rd whether it intended to continue Bush policy that had classified Ali Saleh Kahlah al-Marri beyond the scope of regular criminal law (and regular constitutional due process).

This left little time for long reviews of detainee files—like the sort currently underway with Guantanamo Bay prisoners. Whatever else al-Marri may be, he's no Khalid Sheik Mohammed or Ramsi Binalshibh, the two 9/11 masterminds who represent what former government officials once called "the worst of the worst." So why not leak news of the United States' retreat in U.S. v. al-Marri from "enemy combatant" to "defendant" on a day when everyone else in the country was focused upon the budget? Psst. We've just wasted seven years of this guy's life and government time and energy and money…. but you want to hear more from Bobby Jindal, right?

Then there was the matter of the law. Apparently, and not surprisingly, the fresh, new eyes at the Justice Department quickly realized that the al-Marri case before the Supreme Court was a supreme loser. A Court majority which last year again rebuked the executive branch in a terror detainee case, and a group that already had determined that detainees like al-Marri had a right to fight their case in court, was hardly likely to suddenly do its own about-face and treat al-Marri worse than it treated Jose Padilla or Yaser Esam Hamdi, al-Marri's two, sorry predecessors into the "Enemy Combatant Hall of Fame."

The reversal on al-Marri raises two questions that the White House and Pentagon will need to answer in the next few weeks or months. First, does the new administration still maintain as a matter of law that the executive branch may designate men like al-Marri as "enemy combatants" to hold them indefinitely without trial? May the government take a suspect, lawfully here in the States, out of the criminal justice system and put him on ice in a military brig? That question, currently, is still alive despite the detour al-Marri himself seems to have taken.

Second, does this change presage a new emphasis by the Obama White House on prosecuting middle-shelf terror suspects like al-Marri in our regular civilian courts? In other words, is al-Marri just the first of many detainees who now will be sent to federal court to be tried on garden-variety terror charges? Does his fate mean that the Obama Administration is going to try to empty the prison at Guantanamo Bay, Cuba in part by prosecuting many of the men there in this fashion? The Bush Administration, remember, did prosecute some terrorists in court—Richard Reid, Zacarias Moussaoui, for example—with far more success than it had in prosecuting anyone by military tribunal.

Update 1:42 PM ET: The Justice Department Friday unsealed its indictment against al-Marri. It is surprising on two levels. First, it is entirely devoid of any details, which are not by law required but which almost always are included by prosecutors. Second, it does not include a conspiracy charge against al-Marri relating to the commission, or attempted commission, of an act of terrorism, which means that even if he is ultimately convicted of supporting terrorism (or conspiring to support terrorism) he will not spend the rest of his life in prison.

In other words, the government did not over-charge al-Marri but rather took a fairly conservative approach. I suspect the feds chose the narrow path here because it wants to limit the evidence in the case, perhaps to try to avoid the thorny issue of whether some of the information against al-Marri came about as a result of the "enhanced interrogation tactics" of jailed Al Qaeda leaders like Khalid Sheik Mohammed and Ramzi Binalshibh.

Update, 3:45 PM ET: Here's President Obama's memorandum for the secretary of defense on the case:

Based on the information available to me, including the memorandum from the Secretary of Defense and the Attorney General dated February 26, 2009, and the joint recommendation contained therein, I hereby determine that it is in the interest of the United States that Ali Saleh Kahlah al-Marri be released from detention by the Secretary of Defense and transferred to the control of the Attorney General for the purpose of criminal proceedings against him.

Accordingly, by the authority vested in me as President by the Constitution and the laws of the United States, I hereby direct you to transfer Mr. al-Marri to the control of the Attorney General upon the Attorney General's request. This memorandum supersedes the Presidential directive of June 23, 2003, to the Secretary of Defense, which ordered the detention of Mr. al-Marri as an enemy combatant. Upon Mr. al-Marri's transfer to the control of the Attorney General, the authority to detain Mr. al-Marri provided to the Secretary of Defense in the June 23, 2003, order shall cease.