Judges Rule Against U.S. On Detained 'Combatant'

By Carol D. Leonnig
Washington Post Staff Writer
Tuesday, June 12, 2007

A federal appeals court ruled yesterday that President Bush cannot indefinitely imprison a U.S. resident on suspicion alone, ordering the government either to charge Qatari national Ali Saleh Kahlah al-Marri with his alleged terrorist crimes in a civilian court or release him.

The opinion is a blow to the Bush administration's assertion that the president has exceptionally broad powers to combat terrorism, including the authority to detain without charges foreign citizens living legally in the United States.

It is the first time a court has said that Marri cannot be held forever without facing formal charges, but it is a symbolic victory -- Marri will continue his detention in a naval brig in Charleston, S.C. The government said that it was disappointed by the 2 to 1 decision, handed down by a panel of the U.S. Court of Appeals for the 4th Circuit, and that it will appeal to the full court.

The appeals panel ruled that Bush had overreached his authority and that the Constitution protects U.S. citizens and legal residents such as Marri from unchecked military power. It also rejected the administration's contention that it was not relevant that Marri was arrested in the United States and was living here legally on a student visa.

"The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention," the panel found.

Justice Department spokesman Dean Boyd said that Marri posed a significant threat, and that imprisoning enemy fighters is necessary to stop future attacks.

"The president has made clear 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," Boyd said.

U.S. District Judge Henry E. Hudson, a Bush appointee, dissented from the opinion. Hudson contended that Bush had the power to detain enemy combatants under Congress's authorization to use military force.

"Although al-Marri was not personally engaged in armed conflict with U.S. forces, he is the type of stealth warrior used by al Qaeda to perpetrate terrorist acts against the United States," Hudson wrote. "There is little doubt," the judge maintained, that al-Marri was in the country to aid in hostile attacks on the United States.

Marri's case is one of several involving the rights of suspected enemy combatants that have reached the appellate level of the federal courts and are likely to be decided by the Supreme Court.

Marri was a university student in Peoria, Ill., when he was arrested in December 2001 as a "material witness." The government said that Marri -- who was identified as part of an al-Qaeda sleeper cell by Khalid Sheik Mohammed, architect of the Sept. 11, 2001, attacks -- came to the United States to prepare for a second wave of terrorist strikes. Marri was initially held in prisons in Illinois and New York, then was deemed an enemy combatant by Bush and transferred to the brig, where he has been held for the past four years.

Marri is the last of three U.S. citizens or residents in the Charleston brig. Yaser Esam Hamdi, a U.S. citizen captured on the battlefield in Afghanistan, was held for almost three years by the military without charges. He was released and sent to his native Saudi Arabia after the Supreme Court ruled in 2004 that U.S. citizens must be afforded court trials.

Jose Padilla, another U.S. citizen, was originally accused by the government of attempting to explode a radiological "dirty bomb" in the United States. He was released before a Supreme Court hearing on the case. The government filed less-serious criminal charges against him in November 2005 and transferred him to a civilian prison in Miami in January 2006. He is currently on trial.

The 4th Circuit, based in Richmond, is considered one of the most conservative in the country, but the three-judge panel that heard the case was not. Two judges known as moderates, both appointed by President Bill Clinton, made up the majority in the decision.

The panel found that the 2006 Military Commissions Act, which prohibits enemy combatants from challenging the basis for their imprisonment in U.S. courts, does not apply to a person living legally in the United States. The judges also doubted the legality of classifying someone as an enemy combatant who was not caught on the battlefield or was not carrying arms.

Civil libertarians who championed Marri's case had warned that if the administration prevailed in its argument, the military could next round up U.S. citizens and jail them without trial. The court appeared to agree.

"To sanction such presidential authority to order the military to seize and indefinitely detain civilians . . . would have disastrous consequences for the constitution -- and the country," U.S. Circuit Judge Diana Gribbon Motz wrote for the majority.

The panel tailored its opinion to Marri's circumstances; it does not directly apply to the more than 300 foreign nationals held as enemy combatants in the military prison at Guantanamo Bay, Cuba. But lawyers for some captives noted that the same flaws the court found in the administration's classification of Marri were true for Guantanamo detainees.

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