President Obama has ordered the transfer of Ali Saleh Al-Marri from indefinite solitary confinement to the U.S. criminal justice system. Held without charge for 5 years and 8 months, Al-Marri’s case was yet another example of BushAdmin overreach of executive power and subversion of civil liberties. So we should all cheer Obama’s move, right?

His case sparked a contentious debate over whether an American president has the power to order a legal US resident like Al-Marri – or even a US citizen – into indefinite, incommunicado detention by the military simply by designating that person an enemy combatant.

After years of litigation that issue is currently before the US Supreme Court, which is poised to hear Al-Marri’s case in April. A decision would be expected by late June. But now, given Al-Marri’s possible transfer to the criminal justice system, the Obama administration is expected to ask the high court to dismiss the case.

If granted, the action would leave undisturbed existing legal precedents in the Fourth US Circuit Court of Appeals in Richmond upholding open-ended detentions of enemy combatants within US borders.

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Some analysts question whether the administration is seeking dismissal of the Al-Marri case at the high court to avoid a potential landmark defeat and/or to preserve its own power to designate and hold enemy combatants.

“This is déjà vu all over again. What the Bush administration did with Padilla, the Obama administration is trying to do with Al-Marri,” say Jonathan Freiman, a Padilla lawyer and Yale Law School lecturer.

“Transferring Al-Marri out of the brig is the right thing to do. Moving to dismiss the case is not,” he says. “It’s just a calculated political move to avoid taking a position on what Justice Stevens called ‘nothing less than the essence of a free society,’ “ Mr. Freiman says.

So is this a step in the right direction — or a weasel move by No Drama Obama? As reported recently by Jane Meyer in the New Yorker, the power of the ObamAdmin to prosecute Al-Marri has been complicated by the BushAdmin’s order to put Al-Marri in the brig:

Before agreeing to transfer Marri to the brig, however, the presiding judge in the case ruled that the White House would be barred from charging Marri again with the same crimes. In legal jargon, the original charges were “dismissed with prejudice,” to protect Marri’s right not to be placed in “double jeopardy.” As a result, if the Obama Administration decides to charge him in the criminal system now, it has to bring a different set of charges, unless Marri’s lawyers offer a deal. Benjamin, the former prosecutor, insists that “there is a whole bag of tools for dealing with truly bad guys—there are many other statutes that the government could explore, including material support of terrorism, conspiracy charges, and mail- and wire-fraud charges.” But, he suggests, by taking Marri outside the regular criminal system “there’s no doubt they made all kinds of problems for themselves.”

Read further on in the Mayer article, one finds that Al-Marri was a “hard case” — he kept insisting that he is innocent. What if, just for the sake of conjecture, he is?

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