I don't know how Obama will work it out, but I hope we keep the SOB Ali al-Marri detained until hell freezes over.

From The New York Times:

Just a month after President-elect Barack Obama takes office, he must tell the Supreme Court where he stands on one of the most aggressive legal claims made by the Bush administration — that the president may order the military to seize legal residents of the United States and hold them indefinitely without charging them with a crime.

The new administration’s brief, which is due Feb. 20, has the potential to hearten or infuriate Mr. Obama’s supporters, many of whom are looking to him for stark disavowals of the Bush administration’s legal positions on the detention and interrogation of so-called enemy combatants held at Navy facilities on the American mainland or at Guantánamo Bay, Cuba.

During the campaign, Mr. Obama made broad statements criticizing the Bush administration’s assertions of executive power. But now he must address a specific case, that of Ali al-Marri, a Qatari student who was arrested in Peoria, Ill., in December 2001. The Bush administration says Mr. Marri is a sleeper agent for Al Qaeda, and it is holding him without charges at the Navy brig in Charleston, S.C. He is the only person currently held as an enemy combatant on the mainland, but the legal principles established in his case are likely to affect the roughly 250 prisoners at Guantánamo.

Intelligence officials say he is exceptionally dangerous, making deportation problematic.

Although he was in the United States legally, he was not an American citizen. In addition, a 2001 Congressional authorization to use military force arguably gave the president the authority that Mr. Obama has said is not conferred by the Constitution alone.

There is precedent for reversing course between campaign and courthouse. When Bill Clinton was running for president in 1992, he was vehement in his opposition to the first Bush administration’s policy of intercepting Haitian refugees at sea and returning them without asylum hearings. [I very much resented candidate Clinton taking this position, and was so happy to see him later reverse course.]

By the time he took office, though, Mr. Clinton had changed his mind, instructing the Justice Department to defend the policy in the Supreme Court, which upheld it in 1993.

In 1993, Mr. Clinton said that practical reality trumped legal theory. In the Marri case, too, the practical alternatives to military detention may strike the Obama administration as unpalatable.

One possibility is to deport Mr. Marri to Qatar, but Bush administration officials say that would be an enormous mistake.

“Al-Marri must be detained,” Jeffrey N. Rapp, a defense intelligence official wrote in a court filing in 2004, “to prevent him from aiding Al Qaeda in its efforts to attack the United States, its armed forces, other governmental personnel, or citizens.”

The more serious accusations recounted in Mr. Rapp’s statement are attributed partly to Khalid Shaikh Mohammed, who is believed to be the chief architect of the Sept. 11 attacks and who was captured in early 2003. The Central Intelligence Agency has said Mr. Mohammed was subjected to waterboarding, and information obtained from him may therefore not be admissible in court.