Obama Pulls a Padilla

The New York Times reports that the Obama administration plans to prosecute Ali al-Marri, a legal U.S. resident from Qatar who was arrested seven years ago in Peoria and has been held without charge in military custody since 2003. Al-Marri was originally charged with credit card fraud and lying to the government, but he was transferred to a naval brig in Charleston, South Carolina, just before his trial under a presidential order that identified him as an Al Qaeda sleeper agent. The Times says the Justice Department, which will charge Al-Marri with providing material support for terrorism, probably will argue that sending him back to civilian custody renders moot Al-Marri's Supreme Court case, which raises the question of whether the president has the authority to order the indefinite military detention of legal U.S. residents arrested in the United States as "enemy combatants."

The decision to prosecute Al-Marri is the right one, though seven years late. But it casts further doubt on the need to maintain the option of indefinite military detention for terrorism suspects. The Bush administration insisted that Al-Marri was too dangerous to release but that making a criminal case against him was impossible, presumably because it would reveal intelligence methods and sources. If it turns out that risk can be managed and Al-Marri can be successfully prosecuted, just as Jose Padilla, a U.S. citizen held as an "enemy combatant," ultimately was, there will be even more reason to be skeptical of such claims. Speaking of Padilla, the Obama administration seems to be pulling a similar maneuver with Al-Marri, avoiding a definitive judgment about the president's detention powers by switching the prisoner to civilian custody at the last minute. As I noted in this week's column, it is not clear what criteria will be used to determine which terrorism suspects get trials, and meanwhile the administration is keeping all its detention options open.

Update: Fox News reports that a federal grand jury in Illinois issued a sealed indictment against Al-Marri yesterday. In addition to the material support charge, it says, "there could be other terrorism-related charges in the indictment."