Al-Marri's case is significant because it symbolizes this shift—and will constitute a major test of whether the Obama approach will work in high-profile cases. After al-Marri's arrest by the FBI in December 2001, senior U.S. counterterrorism officials concluded that he was a highly dangerous figure who had been dispatched to launch a "second wave" of domestic attacks that were widely feared in the aftermath of 9/11. Over the objections of some Justice Department prosecutors who wanted to indict him, and despite the fact that he was legally in the country with a valid green card, the White House ordered that al-Marri be transferred to the custody of the U.S. military. The White House's goal: to break al-Marri and force him to provide intelligence on the plans of Al Qaeda. To make sure that happened, he was kept in solitary confinement, denied access to his lawyers and subjected to aggressive interrogation techniques—including sleep deprivation, painful stress positions and loud noises—that "bordered on, and sometimes amounted to, torture," according to his lawyers.

The strategy never worked. Not only did al-Marri never confess, he refused to engage with his interrogators, at times chanting Qur'anic verses rather than provide even basic information about his past, according to one U.S. interrogator who tried and failed to gain his cooperation (and who asked not to be identified talking about matters that remain classified). In the meantime, al-Marri's lawyers challenged the basis for his detention, describing it as one of the supreme examples of the Bush administration's extraordinary claims of executive power.

The constitutionality of al-Marri's treatment—the question of whether the president has the right to lock up legal U.S. residents and hold them indefinitely without charging them with a crime—was due to be argued before the Supreme Court this spring. But rather than endorse the Bush position on executive detention, the Obama Justice Department indicted al-Marri last month. Now it will have to prove its case where many constitutional scholars say it should have been all along—in a federal court.

© 2009