WASHINGTON — Just a month after President-elect Barack Obama takes office, he must tell the Supreme Court where he stands on one of the most aggressive legal claims made by the Bush administration — 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.
The new administration’s brief, which is due Feb. 20, has the potential to hearten or infuriate Mr. Obama’s supporters, many of whom are looking to him for stark disavowals of the Bush administration’s legal positions on the detention and interrogation of so-called enemy combatants held at Navy facilities on the American mainland or at Guantánamo Bay, Cuba.
During the campaign, Mr. Obama made broad statements criticizing the Bush administration’s assertions of executive power. But now he must address a specific case, that of Ali al-Marri, a Qatari student who was arrested in Peoria, Ill., in December 2001. The Bush administration says Mr. Marri is a sleeper agent for Al Qaeda, and it is holding him without charges at the Navy brig in Charleston, S.C. He is the only person currently held as an enemy combatant on the mainland, but the legal principles established in his case are likely to affect the roughly 250 prisoners at Guantánamo.
Many legal experts say that all of the new administration’s options in Mr. Marri’s case are perilous. Intelligence officials say he is exceptionally dangerous, making deportation problematic.
Trying him on criminal charges could be difficult, too, in part because some of the evidence against him may have been obtained through torture and would not be admissible. And staying the course in the Marri case would outrage civil libertarians.
“If they adopt the Bush administration position, or some version of it,” said Brandt Goldstein, a professor at New York Law School, “it is going to be a moment of profound disappointment for everyone in the legal community and Americans generally who believe that the Bush administration has tried to turn the presidency into a monarchy.”
In a statement, a spokeswoman for Mr. Obama, Brooke Anderson, said he “will make decisions about how to handle detainees as president when his full national security and legal teams are in place.” [emphasis mine]
If Obama assumed these positions during the campaign, I am sure he took them as a result of serious and lengthy consideration of the issues. So there's no good reason to believe he would change his mind.
But now it's no longer solely a matter of what Obama himself believes - it is the politics involved in getting it done. It would be beneficial to this process if Obama has someone in the D/CIA position who was uninvolved in delievering fear-mongering to the public and false/flimsy intelligence to the Bush administration.
More on Al-Marri v. Wright from Greenwald. Also from Greenwald, the subsquent 2008 Fourth Circuit ruling.
Meanwhile Carol Gee at TPM Cafe addresses Adm. Blair.