If Harvard Law School Dean Elena Kagan’s nomination as Solicitor General is successful, one of her first tasks will be the February 20th brief in an enemy combatant case, Al-Marri v. Pucciarelli, addressing the Bush Administration’s assertion that the President may order the military to seize legal residents of the United States and hold them indefinitely without charging them with a crime.
Ali Al-Marri is a Qatari student and legal U.S. resident who was arrested in Illinois in December 2001 for fraud. Upon receipt of information identifying him as a sleeper agent for Al Qaeda, those charges were dropped and he was transferred to military detention. The government is holding him without charges at the Navy brig in Charleston, S.C. Intelligence officials argue that Al-Marri is particularly dangerous, which makes deportation problematic, and charges may not be filed due to the potential involvement of torture in evidence gathering.
While Al-Marri’s continued detention is arguably legal as a result of post-September 11 congressional legislation, given the President-elect’s public statements against such detentions, the Obama Administration may find it a politically difficult position to maintain.