"Enemy combatant" will be early test for Obama

By Harriet McLeod

CHARLESTON, South Carolina (Reuters) - The case of Ali al-Marri, accused of being an al Qaeda "sleeper" agent and held for 5-1/2 years at a U.S. military prison in South Carolina, will be an early test for President-elect Barack Obama.

In his first month in office, Obama will have to tell the Supreme Court whether he will abandon his predecessor's claim that anyone the president deems a national security threat can be imprisoned indefinitely without charges in the United States.

Marri is the only person still held in the United States as an "enemy combatant." His case is a test of the limits of presidential power and could also affect any plan to bring some of the 250 prisoners being held at a U.S. military base in Guantanamo Bay, Cuba, to U.S. shores.

The Supreme Court set a February 20 deadline for the new administration to file legal briefs in the case, forcing the hand of Obama, who takes office on January 20.

"The administration has to decide whether they're going to pursue the case, whether they're going to repatriate him," said Andrew Savage, one of Marri's lawyers and one of the few civilians allowed to visit him in the 5 1/2 years he has been held at the U.S. Navy brig in Charleston, South Carolina.

Obama has strongly criticized some of Bush's "war against terrorism" policies but he has not publicly taken a position in Marri's case.

"This case is not about politics. And it's not even just Ali," Savage said. "It's about the rule of law and if we are a country that follows the rule of law. People say to me, 'You son of a bitch, you're working for this terrorist.' I say no, I'm working for you."

Marri a 43-year-old citizen of Qatar, entered the United States legally on September 10, 2001, and was arrested in December 2001 in Peoria, Illinois, where he was attending college.

He was detained as a material witness to the September 11 attacks, charged with credit card fraud and lying to the FBI and held for 18 months before the U.S. government dropped the charges in 2003. President George W. Bush then declared Marri an "enemy combatant" and moved him to the Navy brig, where he has been held in near isolation without charges.

Marri is suspected of being an al Qaeda "sleeper" agent sent by Osama bin Laden and accused 9/11 mastermind Khalid Sheik Mohammed to disrupt the U.S. financial system by hacking into bank computers.

The accusation is contained in a 2004 sworn statement by Jeffrey N. Rapp, a senior Defense Intelligence Agency official, but is not attributed to any individual.

"It's like hearsay of hearsay of hearsay," Savage said.

He called the accusation "quadruple speculation" likely obtained through the torture of Mohammed, whom the CIA has admitted it subjected to the simulated drowning technique known as waterboarding.

A federal appeals court ruled last year that Congress gave Bush the power to imprison Marri when it authorized the use of military force after the September 11 attacks by al Qaeda.

But the Supreme Court agreed to hear a challenge from Marri, whose lawyers argued that neither that law nor the Constitution allows indefinite military detention of a person lawfully residing in the United States, without charges or trial.