Man Labeled "Enemy
Wins Court Case: Bush Looses
JAMES VICINI / Reuters 11jun2007
[More on Bush]
WASHINGTON — President George W. Bush cannot order the military to seize and indefinitely detain a Qatari national and suspected al Qaeda operative, the only person being held in the United States as an "enemy combatant," an appeals court ruled on Monday.
In a major setback for Bush's policies in the war on terrorism adopted after the September 11 attacks, the appellate panel ruled 2-1 the U.S. government had no evidence to treat Ali Saleh Kahlah al-Marri as an "enemy combatant." The court ordered him released from military custody.
"The government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians — let alone imprison them indefinitely," Judge Diana Gribbon Motz wrote.
Al-Marri has been held in a U.S. Navy brig in Charleston, South Carolina, for about four years without any charges.
The ruling sent the case back to a federal judge in South Carolina with instructions to direct the secretary of defense to release al-Marri from military custody within a reasonable period of time.
The government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings, hold him as a witness in a grand jury proceeding or detain him for a limited period of time under the Patriot Act, an anti-terrorism law.
Military Cannot Hold
ADAM LIPTAK / New York Times 11jun2007
In a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism, a federal appeals court ordered the Pentagon to release a man being held as an enemy combatant.
“To sanction such presidential authority to order the military to seize and indefinitely detain civilians," Judge Diana Gribbon 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.”
The ruling was handed down by a divided three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., in the case of Ali al-Marri, a citizen of Qatar and the only person on the American mainland known to be held as an enemy combatant.
Mr. Marri, whom the government calls a sleeper agent for Al Qaeda, was arrested on Dec. 12, 2001, in Peoria, Ill., where he was living with his family and studying computer science at Bradley University.
He has been held for the last four years at the Navy Brig in Charleston, S.C.
Judge Motz wrote that Mr. Marri may well be guilty of serious crimes. But she said that the government cannot circumvent the civilian criminal justice system through military detention.
Mr. Marri was charged with credit-card fraud and lying to federal agents after his arrest in 2001, and he was on the verge of a trial on those charges when he was moved into military detention in 2003.
The government contended, in a partly declassified declaration from a senior defense intelligence official, Jeffrey N. Rapp, that Mr. Marri was a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.
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 United States Supreme Court allowed him to challenge his detention in 2004.
The other, Jose Padilla, was transferred to the criminal justice system last year just as the Supreme Court was considering whether to review his case. He is now on trial on terrorism charges in federal court in Miami.
The decision does not appear to affect the rights of men held at the American naval base at Guantanamo Bay, Cuba. Judge Motz stressed that the court analysis was limited to those who have substantial connections to the United States and are seized and detained within its borders.
A dissenting judge in today’s decision, Henry E. Hudson, visiting from the Federal District Court for the Eastern District of Virginia, wrote that President 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.”
Jonathan Hafetz, the litigation director of the Liberty and National Security Project of the Brennan Center for Justice at New York University School of Law and one of Mr. Marri’s lawyers, said of the court’s decision: “This is landmark victory for the rule of law and a defeat for unchecked executive power. It affirms the basic constitutional rights of all individuals — citizens and immigrants - in the United States.”
Writing for the majority, Judge Motz ordered the trial judge in the case to issue a writ of habeas corpus directing the Pentagon “within a reasonable period of time” to do one of several things with Mr. Marri. He may be charged in the civilian court system; he may be deported; or he may be held as a material witness; or he may be released.
“But military detention of al-Marri,” Judge Motz wrote, “must cease.”