Taking on another historic constitutional fight over war-on-terrorism powers, the Supreme Court agreed on Friday to rule on the President’s authority to order the seizure in the U.S. and long-term detention of an individual suspected of war crimes but not charged.  The Court agreed to hear, and probably will decide by next summer, the case of Al-Marri v. Pucciarelli (08-368), involving the only individual captured inside the U.S. and still being held in this country for an indefinite period, with no sign of any criminal prosecution.

The government’s brief is not due until after President-elect Barack Obama takes office, so his administration will have the option of changing the government’s present position in defense of the detention authority.  At the earliest, the government’s brief would not be filed for 75 days — that is, until about Feb. 18.  The Court did not expedite the briefing schedule.  The case is now scheduled for argument in late March.

If Obama should decide to forego the claim of power that is at issue, that could mean the case would come to an end in the Court without a ruling by the Justices. In that event, the Justices would probably send the case back to lower courts to determine what happened next to the Qatari national who is involved, Ali Saleh Kahlah al-Marri.  He is presently being held solely on the basis of a presidential declaration that he is an “enemy combatant.”

If the new administration opted to do so, it conceivably could charge him with crimes and prosecute him either in military or civilian courts.  He probably would not be released in the meantime, if prosecution were the decision the government made.

The Fourth Circuit Court, in a widely splintered decision last July, upheld the President’s authority to order the military detention inside the U.S. of an individual suspected of terrorist links, on the basis of a government official’s assertion that al-Marri had come to the U.S. the day before the Sept. 11, 2001, terrorist attacks to become a part of a “sleeper cell” to carry out terrorist actions inside the country.  The Circuit Court relied on Congress’ passage of a resolution after the Sept. 11, 2001, terrorist attacks, authorizing the use of military force to deal with those who attacked or supported the attacks. It did not rule on a separate claim of detention authority under the President’s commander-in-chief powers.

The Circuit Court also went on to rule that al-Marri was entitled to a more thorough hearing in District Court on his challenge to his seizure and prolonged captivity.  The Justice Department had urged the Supreme Court not to hear al-Marri’s challenge at this point, but instead to allow the District Court proceeding to continue.  The Court, however, granted review of the issue that al-Marri had raised — a direct test of presidential authority.

The question at issue is: “Does the Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorize — and if so does the Constitution allow — the seizure and indefinite military detention of a person lawfully residing in the United States, without criminal charge or trial, based on government assertions that the detainee conspired with al Qaeda to engage in terrorist activities?”

Al-Marri was seized at his home in Peoria, Ill., where he was a graduate student; he was later charged with a crime, then was pulled out of the civilian court system on President Bush’s orders. He has been held since June 2003 in military custody, most of that time at the U.S. Navy jail or “brig” in Charleston, S.C.

In some ways, the al-Marri case could be the most important of a series of Supreme Court rulings since 2004 growing out of the Bush Administration’s global response to terrorism. That is because the power at issue not only could affect aliens in the country, but U.S. citizens, as well.  It is at least as much a direct challenge to presidential authority as was the Court’s 2006 decision overturning the presidentially ordered military tribunal system for trying war crimes cases.

Besides agreeing to hear al-Marri’s challenge, the Court voted on Friday to hear a second case, seeking clarification of the instructions that judges must give to juries in job discrimination cases when the employer had a valid as well as an illegitimate reason for a workplace decision — a so-called “mixed-motive” case.  The new case is Gross v. FBL Financial Services, Inc. (08-441),  involving an Iowa company executive who claimed he was passed over for a promotion that went to a woman who was younger, in violation of the Age Discrimination in Employment Act.  This case, too, is due to be heard in March.

Under employment discrimination law, a worker claiming bias on the job has the burden of proof throughout the case.  If the case involves a mixed motive on the part of the employer, however, the worker’s task is eased somewhat.  If the worker shows that a biased motive was one factor in denying him or her a raise, a promotion, or even a job, the employer then must prove that it would have taken the same action even without that illegal motive.

The question the Court will now consider is what kinds of evidence the worker must have in order to demonstrate a biased motive was a factor.  In this case, the Eighth Circuit ruled that, in an age bias case, the worker must have “direct evidence” of the biased motive — that is, proof of a specific link between that motive and the action taken by the employer.

The Supreme Court, in a 2003 case, Desert Palace v. Costa, ruled that a worker is not required to have that strong evidence in a mixed-motive case under Title VII — the general law against workplace discrimination based on race, sex, religion or national origin.  The Court in that ruling, however, left open the issue of whether it would relax the proof requirement in non-Title VII cases — such as an age bias cas

That is what Jack Gross, a former vice president of FBL Financial Services, asked the Court to decide.  He had won a $46,945 verdict on his claim of age discrimination.  The Eighth Circuit overturned that verdict, and ordered a new trial, because the judge had given the mixed-motive instruction to the jury without Gross having offered direct evidence of the illegitimate motive.

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