US Appeals Court Says Ali al-Marri Cannot Be Held As 'Enemy Combatant'

Ali al-Marri has been held by the Bush administration as an enemy combatant inside the United States.
Originally uploaded by Pan-African News Wire File Photos

June 12, 2007

Judges Say U.S. Can’t Hold Man as ‘Combatant’

By ADAM LIPTAK
New York Times

The federal appeals court in Richmond, Va., ruled yesterday that the president may not declare civilians in this country to be “enemy combatants” and have the military hold them indefinitely. The ruling was a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism.

The ruling came in the case of Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., who is the only person on the American mainland known to be held as an enemy combatant. The court said the administration may charge Mr. Marri with a crime, deport him or hold him as a material witness in connection with a grand jury investigation.

“But military detention of al-Marri must cease,” Judge Diana Gribbon Motz wrote for the majority of a divided three-judge panel.

The court, the United States Court of Appeals for the Fourth Circuit, said a fundamental principle is at stake: military detention of someone who had lawfully entered the United States and established connections here, it said, violates the Constitution.

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians,” Judge Motz wrote, “even if the president calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country.”

“We refuse to recognize a claim to power,” Judge Motz added, “that would so alter the constitutional foundations of our republic.”

In a statement, the Justice Department said it would ask the full Fourth Circuit to rehear the case, which could eventually reach the Supreme Court. The statement added that Mr. Marri represented a danger to the United States.

“Al-Marri is an individual who trained at Osama bin Laden’s terrorist training camp in Afghanistan,” the Justice Department statement said. “In the summer of 2001, he met with Khalid Shaykh Muhammed, the mastermind of the September 11th attacks, and entered the United States just before September 11 to serve as an Al Qaeda sleeper agent and to explore methods of disrupting the U.S. financial system.”

“The president has made clear,” the statement continued, “that he intends to use all available tools at his disposal to protect Americans from further Al Qaeda attack, including the capture and detention of Al Qaeda agents who enter our borders.”

Mr. Marri was arrested on Dec. 12, 2001, in Peoria, Ill., where he was living with his family and studying computer science at Bradley University. He was charged with credit-card fraud and lying to federal agents, and he was on the verge of a trial on those charges when he was moved into military detention in 2003. He has been held for the last four years at the Navy brig in Charleston.

Mr. Marri’s transfer to military custody, Judge Motz wrote, is “puzzling at best.” The usual reason offered for the indefinite detention without charges of enemy combatants is to immobilize them and prevent them from returning to the battlefield. But Mr. Marri was already held pending his criminal trial.

Judge Motz suggested that the government’s purpose in moving Mr. Marri to military custody was one the Supreme Court held improper in a 2004 decision, Hamdi v. Rumsfeld, that of subjecting him to harsh interrogation.

For his first 16 months in the brig, Mr. Marri was allowed no contact with his family or lawyers. He was, a lawsuit filed on his behalf in 2005 said, denied basic necessities and subjected to extreme sensory deprivation. Interrogators threatened to send him to Egypt or Saudi Arabia, the lawsuit said, “where, they told him, he would be tortured and sodomized and where his wife would be raped in front of him.”

Judge Motz, joined by Judge Roger L. Gregory, wrote that Mr. Marri might well be guilty of serious crimes. But she said the government could not circumvent the civilian criminal justice system through military detention. The court reversed a lower-court decision that had denied Mr. Marri’s challenge to his detention.

Two other men have been held as enemy combatants on the American mainland since the Sept. 11 attacks. One, Yaser Hamdi, was freed and sent to Saudi Arabia after the Supreme Court allowed him to challenge his detention in 2004. The other, Jose Padilla, was transferred to the criminal justice system last year. He is now on trial on terrorism charges in federal court in Miami.

All three judges yesterday agreed that a new law, the Military Commissions Act, did not defeat the court’s jurisdiction. The law says the federal courts have no jurisdiction to hear challenges from any noncitizen “who has been determined by the United States to have been properly detained as an enemy combatant.”

Unlike the men held at Guantánamo Bay, Cuba, Mr. Marri has not yet received even the cursory review of his designation as enemy combatant, performed by a military panel known as a combatant status review tribunal. The Military Commissions Act, Judge Motz concluded, “was not intended to, and does not, apply to aliens like al-Marri, who have legally entered, and are seized while legally residing in, the United States.”

The majority and the dissenting judge, Judge Henry Hudson, visiting from the Federal District Court for the Eastern District of Virginia, differed mainly on whether civilians may ever be classified as enemy combatants.

Because Mr. Marri was not alleged to have fought with the Taliban or the armed forces of any enemy nation or to have engaged in combat with United States forces, Judge Motz wrote, Mr. Bush was powerless to have the military detain Mr. Marri any more than he could have ordered the military detentions of “the Unabomber or the perpetrators of the Oklahoma City bombing.”

In dissent, Judge Hudson wrote that Mr. Bush “had the authority to detain al-Marri as an enemy combatant or belligerent” because “he is the type of stealth warrior used by Al Qaeda to perpetrate terrorist acts against the United States.”

Judges Motz and Gregory were appointed by President Bill Clinton, and Judge Hudson by Mr. Bush.

Jonathan Hafetz, one of Mr. Marri’s lawyers and the litigation director of the Liberty and National Security Project of the Brennan Center for Justice at New York University School of Law, said a contrary ruling could have had devastating consequences.

Under the administration’s theory, Mr. Hafetz said, “the executive could effectively disappear people by picking up any immigrant in this country, locking them in a military jail and holding the keys to the courthouse. This is exactly what separates a country that is democratic and committed to the rule of law from a country that is a police state.”

The decision appears unlikely to have any immediate effect on the men held at Guantánamo. Judge Motz emphasized that the court’s analysis was limited to those with substantial connections to the United States who had been seized and detained within its borders.

Still, White House critics said the ruling was only the latest in a series of setbacks for the administration.

“Last Monday, two military judges handpicked to preside over the Guantánamo Bay trials rejected the claim that a presidential order alone was sufficient to give the courts jurisdiction over the detainees,” said Jennifer Daskal, advocacy director of the United States Program of Human Rights Watch. “And today, one of the nation’s most conservative courts squarely rejected the president’s unprecedented assertion that he, alone, could hand out the label of ‘enemy combatant’ without any sort of independent court review.”

The appeals court yesterday ordered the trial judge in the case to issue a writ of habeas corpus directing the secretary of defense to release Mr. Marri from military custody “within a reasonable period of time to be set by the district court.” The government can, Judge Motz wrote, transfer Mr. Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with a grand jury proceeding or detain him for a limited time under a provision of the U.S.A. Patriot Act.

But the military cannot hold him, Judge Motz wrote. “The president cannot eliminate,” she wrote, “constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention.”