February 26, 2009 4:48PM

Trying Al‐​Marri

The Washington Post is reporting that the Obama administration is planning to charge Ali Saleh Kahlah al‐​Marri with providing material support to Al Qaeda. Al‐​Marri is an alleged sleeper agent for Al Qaeda, and the FBI intercepted him while he was an exchange student in Illinois. Prior to his trial, the Bush administration moved him into military custody and dropped the charges with prejudice, meaning that they could not be re‐​filed. Apparently, there is enough evidence to file a fresh indictment. The ACLU statement is available here. My prior posts on the topic are available here and here.

This is probably an attempt to remove the case from the Supreme Court’s docket and avoid the constitutional controversy of keeping someone out of the criminal justice system.

The Supreme Court should not be deterred from hearing the case. Cato filed an amicus brief with the Constitution Project and the Rutherford Institute in al-Marri’s case. We were not alone, as virtually every civil liberties organization weighed in. A group of retired military officers filed an amicus brief arguing that the Posse Comitatus Act and associated statutes specifically prohibit the “direct participation by a member of the [Armed Forces] in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”

It is time to drive a stake through the heart of domestic military detention. The Bush administration moved detainees into military custody and to different jurisdictions to avoid judicial review. In 2006 the Supreme Court denied certiorari to convicted Al Qaeda operative Jose Padilla’s habeas petition. He had just been moved to civilian custody and indicted in Florida, so he was no longer detained by the military. The prospect of returning to military custody was taken seriously enough by three justices that they voted to grant certiorari — one shy of the requirement for the Court to hear the case.

Kennedy was sufficiently unnerved by domestic military detention that, although he voted not to grant certiorari, he wrote separately. “In light of the previous changes in his custody status and the fact that nearly four years have passed since he was first detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again.” Chief Justice Roberts and Justice Stevens joined him.

As I have said before, the line between the civilian criminal justice system and the military is in many ways the line of liberty. The Court should take up this case and put that line back in place.