Justice Department's Brief On Detention Policy Draws Ire

By Dan Eggen
Washington Post Staff Writer
Wednesday, November 15, 2006

Critics of U.S. detention policies warned yesterday that a brief legal document filed by the Justice Department this week raises the possibility that any of the millions of immigrants living in the United States could be subject to indefinite detention if they are accused of ties to terrorist groups.

In a six-page motion filed in the U.S. Court of Appeals for the 4th Circuit in Richmond, Justice Department lawyers argue that an anti-terrorism law approved by Congress last month allows the government to detain any foreign national declared to be an enemy combatant, even if he is arrested and imprisoned inside the United States.

The government argues that a legal challenge by alleged al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri should be dismissed because the former Bradley University graduate student has no standing in regular civilian courts. Under the new law, the Military Commissions Act, the Pentagon plans to place Marri into its new military trial system as soon as his criminal case is dismissed, according to the filing.

In the past, foreign nationals arrested in the United States have generally had the right to challenge their imprisonment for immigration violations or other alleged crimes in U.S. civilian courts. In the Marri case, the Justice Department essentially argues for an exception for those arrested as enemy combatants, legal experts said.

"It's been the case since the nation's founding that immigrants have a constitutional right to test their detention in a court," said one of Marri's attorneys, Jonathan Hafetz, of the Brennan Center for Justice at the New York University School of Law. "What it means is that any of the millions of immigrants in the United States could be arrested, taken from their homes and thrown in a military jail and denied their right to go to court."

Justice spokesman Brian Roehrkasse said in a statement that Marri attended an al-Qaeda training camp, met with the alleged mastermind of the Sept. 11, 2001, attacks, Khalid Sheikh Mohammed, and entered the country "to serve as an al Qaeda sleeper agent and to explore methods of disrupting the U.S. financial system.

"Enemy combatants are not entitled to preferential treatment merely because they have succeeded in entering our borders with the intent to harm American citizens or interests," Roehrkasse said.

Marri, a Qatari national, has been in a military brig in South Carolina since he was accused in June 2003 of being an al-Qaeda "sleeper" agent sent to the United States to stage attacks after the Sept. 11 attacks. Marri has filed a petition in federal court alleging that he is being jailed unlawfully and deprived of rights of due process. That claim was rejected by a district court and is on appeal.

Justice lawyers argue in their court filing that Marri "has been properly detained as an enemy combatant" and has not produced any evidence rebutting the government's allegations against him. The government makes no mention in the filing that Marri was arrested and imprisoned inside the territorial United States.

The distinction could prove important, because legal experts on both sides of the issue agree that the location of Marri's arrest and detention gives him an important legal advantage over detainees arrested overseas. About 435 such detainees are confined at the military prison at Guantanamo Bay, Cuba.

"It was pretty clear that they'd try to get his complaint dismissed," said Robert Chesney, a specialist in national security law at Wake Forest University. "What's different about al-Marri is that he's not just an enemy combatant at Gitmo; he's an enemy combatant captured and held in the U.S. . . . He may have a much stronger constitutional argument."

The provision of the military commissions act that stripped detainees of access to U.S. courts was approved by Congress last month and aimed primarily at Guantanamo Bay detainees, many of whom had filed legal challenges to their prolonged confinement. The new law provides for trials of enemy combatants before military panels instead of civilian judges or juries.

Douglas Kmiec, a Pepperdine University law professor who was a Justice Department official during the Ronald Reagan and George H.W. Bush administrations, said the Justice brief signals that this administration believes Congress has given it clear authority to declare foreign nationals as enemy combatants, wherever they are captured.

"It not only opens up the universe of people who may be subjected to these specialized procedures, but it does it emphatically with Congress's approval," Kmiec said. "It remains to be seen whether that changes the judicial dynamic."

Staff researcher Julie Tate contributed to this report.

© 2006 The Washington Post Company