New-Boss Watch

[Corrected]

Barack Obama had an opportunity to break with the usurpations of the Bush regime by agreeing to have the Supreme Court hear Ali al-Marri's challenge to the U.S. government's alleged authority to hold legal U.S. residents without charge as "enemy combatants."

Obama blew it. His Justice Department asked for a dismissal, and that's what it got.

Al-Marri had been held without charge in a military brig since 2003 after the administration's initial abortive attempt to proceed in the civilian courts. (The married Illinois graduate student was suspected of being an al-Qaeda sleeper agent. Details here.) In 2007 a panel of the Fourth U.S. Circuit Court of Appeals said this violated al-Marri's rights. But the full court reversed that ruling and sided with the Bush administration. The case was headed for the Supreme Court, but then the Obama administration decided to transfer al-Marri to the civilian courts. That is a good thing because he will have the usual protections accorded criminal suspects. But there's one hitch: Al-Marri's lawyers wanted the Supreme Court to hear the case anyway, claiming the administration "does not repudiate the possibility that al-Marri will be returned to military custody and detained without charge." Obama's Justice Department does not rule this out. Indeed, as things now stand, al-Marri could be acquitted but again be held as an enemy combatant.

One bright note: in dismissing the case the Supreme Court vacated the Fourth Circuit's pro-Bush ruling. It's as if it had never been issued.

This was a big test for Obama on the civil liberties front. He could have asked the Supreme Court to rule once and for all -- which would have blocked future presidents from such monstrous conduct. He didn't do it.

He can make up for it to some extent by clearly repudiating the Bush "enemy combatant" doctrine. But so far, we have no reason to expect this.

Glenn Greenwald has more detail here. Bruce Fein has an excellent analysis here, including the critical point that terrorism is crime not warfare.