06 Jan Detain, Deport, or Prosecute al-Marri?
The New York Times has a thoughtful piece by Adam Liptak this weekend on the Obama Administration’s difficult choice in its forthcoming brief in the Supreme Court case of al-Marri v. Pucciarelli. Essentially, the Obama Administration will have to choose between continued detention, deportation to a third country, or prosecution.
Each choice is perilous. If Obama chooses continued detention he will affirm much of the Bush Administration’s central claim that this really is a war on terror and that the legal framework of war authorizes detention of enemy combatants during continued hostilities. Treating terror as war and terrorists as warriors would enrage civil libertarians. Failing to do so would leave Obama open to criticism for being soft on terrorism. Forcing this question in Obama’s first month in office should be avoided at all costs.
That means Obama should find a way to render the case moot. Deporting him to his native country of Qatar is the easiest way to do so. Qatar is a relatively liberal Muslim nation that has extremely good relations with the United States. With an appropriate diplomatic agreement one would think that Obama could structure al-Marri’s deportation and subsequent treatment in Qatar in a way that protects United States national security interests while affording al-Marri his due process.
The final option is to prosecute al-Marri. This could be done either in a military tribunal or through a criminal proceeding. Liptak’s article does not distinguish between these two options and only obliquely addresses the prospects of a successful prosecution. Assessing the merits of this choice depends on the strength of the evidence against al-Marri, which is not apparent to me from the publicly-available information.
The long and the short of it is that Obama does not need and should avoid an early test on this most sensitive topic. The Clinton Administration famously started off on the wrong foot with the military with an early confrontation on gays in the military. Obama needs time to work through his position on the treatment of enemy combatants. It is not an easy issue that can be thoughtfully resolved in his first month in office. Finding a way to get the al-Marri case to go away would be high on my list of priorities if I were in his shoes.
Do you agree? What should Obama do with al-Marri?