By Sari Horwitz
Washington Post Staff Writer
Friday, February 2, 2007
RICHMOND, Feb. 1 -- The Bush administration argued Thursday that a Qatari national who it says was an al-Qaeda sleeper agent sent to the United States for a second wave of terrorist attacks has no right to challenge in court his status as an enemy combatant.
Attorneys for Ali Saleh Kahlah al-Marri, held for 3 1/2 years in the Navy brig in Charleston, S.C., have contested the president's authority to indefinitely detain a lawful resident of the United States without charges.
If the government is right, said lawyer Jonathan Hafetz, "they can pick up any immigrant in this country, lock them in a military jail and hold the keys to the courthouse. If this case stands, the United States could effectively disappear people."
In arguments before a three-judge panel of the U.S. Court of Appeals for the 4th Circuit in Richmond, Bush administration lawyers contended that the Marri case is unique and does not represent a threat to immigrants with no ties to terrorist organizations.
Assistant Solicitor General David B. Salmons said Marri met in 2001 with Osama bin Laden and accused Sept. 11 mastermind Khalid Sheik Mohammed and received training from al-Qaeda in Afghanistan in the use of poisons.
The government contends that Marri was sent to help other al-Qaeda operatives carry out subsequent terrorist attacks and had been told by al-Qaeda to explore computer-hacking methods to disrupt the U.S. banking system. "This is not a close case," Salmons said. "Al-Marri is clearly an al-Qaeda operative."
Marri, 41, is the only accused enemy combatant still held in the United States. Yaser Esam Hamdi, a U.S. citizen, was freed and sent to Saudi Arabia after the Supreme Court upheld his right to challenge his detention; Jose Padilla, another U.S. citizen, was transferred to the civilian justice system last year. Marri, who took up residence in Peoria, Ill., on a student visa in 2001, was arrested there.
Marri was arrested by the FBI in December 2001 and charged with credit card fraud and lying to federal agents. He was accused of denying that he had repeatedly tried to call a man in the United Arab Emirates who was the paymaster for the Sept. 11 hijackers. The charges were dropped in June 2003 when President Bush declared Marri an enemy combatant and moved him to military control.
Thursday, the judges focused their questions not on whether Marri is an al-Qaeda operative but on whether he was properly designated an enemy combatant.
Judge Diana Gribbon Motz questioned under what circumstances the president can order someone on U.S. soil to be detained as an enemy combatant. Under the traditional laws of war, she said, combatants are captured on a battlefield and connected to a nation or state at war with the United States.
Motz said that she is concerned about giving the government broad authority "to pluck up anyone from the streets of the United States" and added: "We don't want other nations to do that to our people."
But Judge Roger L. Gregory suggested that Congress knew it was dealing with an "amorphous enemy" when it passed the Military Commissions Act last year, creating a tribunal system for accused combatants such as Marri to challenge their status.
The provision of the act that denies access to U.S. courts to foreign nationals deemed enemy combatants was aimed primarily at Guantanamo Bay detainees. Attorneys for those prisoners have filed a challenge to that provision, arguing that it violates constitutional guarantees against being detained without the right to contest the charges in court.