Justice for an 'Enemy Combatant'
The case of a legal U.S. resident held without charge returns to federal court.

Saturday, August 25, 2007

THE DECISION by the full U.S. Court of Appeals for the 4th Circuit on Wednesday to rehear the case of alleged enemy combatant Ali Saleh Kahlah al-Marri does not bode well for those the Bush administration has detained in the war on terrorism.

Mr. Marri, a permanent legal resident, reentered the country on Sept. 10, 2001, on a student visa and was arrested in December of that year as a material witness. By that time, there was reason to believe Mr. Marri was dangerous: The government claims he had trained in a terrorist camp overseas, had met with Osama bin Laden and was a member of an al-Qaeda sleeper cell intent on disrupting this country's financial system. Mr. Marri was indicted in federal court for credit card fraud and for lying to the FBI. But on the eve of trial in 2003, the administration dropped the charges against Mr. Marri, designated him an enemy combatant and transferred him to a military brig in South Carolina, where he has been held without charge since.

Understandably, Mr. Marri challenged this detention, and he found a receptive audience in a panel of 4th Circuit judges. The judges, split 2-1, eviscerated President Bush's claim that he has the power to unilaterally designate noncitizens such as Mr. Marri as enemy combatants and hold them indefinitely with no way of challenging that detention. At the Justice Department's request, the full 4th Circuit has agreed to reevaluate the panel's decision.

The full court, long a conservative bastion, appears likely to overturn the panel -- and with some justification. The panel's decision was weakest when it argued that Mr. Marri should never have been designated an enemy combatant because he was neither formally affiliated with an army at war with the United States nor captured on a battlefield. That line of thought could have prevented the government from detaining some of the Sept. 11 hijackers before the attacks -- a proposition very few would find acceptable.

The full court should not, however, back away from the panel's legitimate and unequivocal call for due process for Mr. Marri. National security concerns or evidentiary problems may preclude federal court resolution of Mr. Marri's case and others. But Mr. Marri must be afforded some protections, including the right to challenge his detention in federal court through a habeas corpus appeal. This is not -- or should not be -- a country that simply "disappears" people without hearings.