Dealing With Mr. Marri

A court delivers another blow to the administration's untenable rules for suspected terrorists.

THERE'S EVERY reason to believe that Ali Saleh Kahlah al-Marri is a dangerous terrorist. The government claims that Mr. Marri, a citizen of Qatar, was sent to the United States as an al-Qaeda sleeper agent, arriving on Sept. 10, 2001, to disrupt the U.S. financial system. He allegedly met with Osama bin Laden, trained at an al-Qaeda terrorist camp and "volunteered for a martyr mission."

There's also every reason to believe that Mr. Marri has been treated in a way antithetical to American values. A legal permanent resident of the United States, which affords him the constitutional right to due process, he was arrested in December 2001 and charged with credit card fraud and lying to federal agents. But on the eve of a 2003 court hearing, Mr. Marri was declared an "enemy combatant" by President Bush and transferred to military custody.

For the first 16 months of incarceration, he was held incommunicado, not allowed to speak to his lawyers. Mr. Marri claims that during his interrogation he was threatened with being sent to Egypt or Saudi Arabia, where he would be tortured and his wife would be raped in front of him. The government argues that it is entitled to hold him indefinitely, without any court review.

All this background is necessary to understanding Monday's ruling by a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond, a decision that the government plans to appeal. All three judges on the panel rejected -- correctly, in our view -- the government's contention that Mr. Marri had been stripped of his right to bring a habeas corpus action in federal court.

But the judges disagreed, 2 to 1, about whether Mr. Marri could lawfully be declared an enemy combatant. The majority said the president did not have the authority to do so, either under the congressional Authorization for Use of Military Force or his inherent constitutional power, and that Mr. Marri must therefore be criminally charged, deported, held as a material witness or set free. We are skeptical about some of the legal reasoning by the majority, in particular its conclusion that, under the law of war, Mr. Marri could not be an enemy combatant because al-Qaeda is not "the military arm of an enemy nation" -- an approach that could call into question the government's authority to detain as enemy combatants al-Qaeda members captured abroad.

Nonetheless, the court's revulsion at the administration's position is understandable; once again, the administration is reaping the bitter fruits of its extreme legal views. There may be some situations that justify the detention of alleged terrorists such as Mr. Marri and that would make it difficult, if not impossible, to bring criminal charges against them. But that cannot be done unilaterally, without procedural protections, as the administration wishes. This country does not simply "disappear" people without hearings. The administration's claims are further undercut by its ping-ponging of alleged terrorists such as Mr. Marri and Jose Padilla between civilian and military courts, depending on what suits the administration's legal interests.

The ongoing and amorphous nature of the war on terrorism may require some new rules to handle those few cases in which U.S. citizens or permanent residents accused of terrorist activity here cannot be criminally prosecuted but must, for the safety of the country, be detained. Nothing, except its own dangerously grandiose notion of untrammeled executive power, prevents the administration from asking Congress to write clear rules granting and outlining that authority.