By R. Jeffrey Smith and Del Quentin Wilber
Washington Post Staff Writers
Wednesday, July 16, 2008
A federal appellate court issued a new setback to the Bush administration on the treatment of terrorism suspects yesterday, declaring that the only accused "enemy combatant" apprehended and held on U.S. soil can petition a civilian court to review the evidence against him.
At the same time, the divided U.S. Court of Appeals for the 4th Circuit affirmed the president's wartime power to hold accused combatants apprehended in the United States without trial, reversing a previous ruling by a panel of its own judges.
The Justice Department hailed that part of the decision, saying it preserved "a vital tool in protecting the nation." A spokesman said it recognized "the president's authority to capture and detain al-Qaeda agents who, like the 9/11 hijackers, come to this country to commit or facilitate warlike acts."
The twin 5 to 4 rulings are the latest development in the lengthy and complex legal struggle between the White House and the courts over the constitutional rights of Ali Saleh Kahlah al-Marri, a Qatari who, according to his own account, arrived with his family in the United States on Sept. 10, 2001, to pursue a master's degree.
Arrested in December 2001 and labeled a sleeper agent for al-Qaeda by President Bush, Marri has been held under harsh conditions in a military brig on Bush's direct order since 2003. His detention has included months of mostly solitary confinement that his lawyers say has left him mentally unstable.
Jonathan Hafetz, who represents Marri, said that in ordering a new hearing on the basis for Marri's detention, the court's majority had significantly rejected the "president's most sweeping claims of unchecked and unreviewable executive detention power." But he said that victory was tempered by a ruling that "effectively allows the president to seize any person in the United States, a citizen or noncitizen, and detain them indefinitely without trial."
That "cripples the most important constitutional right of all, the right to be charged and tried if suspected of wrongdoing," said Hafetz, who added that he is reviewing the opinion to determine whether to appeal.
The Justice Department initially argued that as a designated enemy combatant, Marri was not entitled to a hearing in civilian courts; later, it said no court could trump the president's authority to order Marri's indefinite military detention. It finally argued that a court could intervene only if Marri proved at a military hearing that the hearsay evidence against him was wrong.
While the Richmond-based court concluded that Bush was correct in asserting that enemy combatants can be detained merely on a determination that "the detention was necessary" -- as the Supreme Court determined in a 2004 ruling in another case -- it also said the Bush administration had inappropriately tried to block any judicial review.
The Constitution's protections against potentially unlawful detention apply equally to all citizens and legal immigrants in the United States, the court said, and the judiciary is not obligated to defer automatically to the president, the military, or to the " 'multi-agency evaluation process' of government bureaucrats in Washington" about the threat posed by Marri.
Instead, the court said, a civilian judge can hear Marri's response to a defense intelligence officer's assertions in 2004 that Marri met with Osama bin Laden, volunteered and trained for a "martyr mission," took money from an al-Qaeda financier and committed fraudulent acts.
Those accusations formed the basis of the military's assertion that Marri was an enemy combatant, and they impressed some of the 4th Circuit's judges as adequate proof of his terrorist intent. Others, however, labeled them unproved hearsay that demanded more careful review.
Several of the judges expressed particular concern about the timing of the military's claims, 18 months after Marri's initial detention and less than a month before he was slated to be tried in a civilian court.
Judge William B. Traxler Jr., in a concurring opinion, said for example that Marri should be able to confront any witnesses against him, unless the government can prove that doing so is impractical or too burdensome.
In a 2004 case, the Supreme Court ruled that the U.S. military could detain someone apprehended on the battlefield in the fight against terrorism, in this case Afghanistan, and designated an enemy combatant. But in decisions since then, it also has asserted that the courts can review those designations.
Those rulings, like yesterday's, came from fractured courts, with strong emotions expressed by judges on both sides. In the 4th Circuit's principal opinion, Clinton appointee Diana Gribbon Motz, joined by three other judges appointed by Democrats, wrote that nothing less than the survival of freedom and security is at stake in protecting civilians from the unlawful application of military force.
Turning aside the White House's long-held contention that Congress's loosely written authorization for the use of military force on Sept. 18, 2001, gave Bush broad and unchallengeable authority, Motz wrote: "We cannot agree that . . . Congress silently authorized a detention power that so vastly exceeds all traditional bounds."
A majority, made up of Clinton appointee Traxler and four judges appointed by Republicans, disagreed on this issue, however, ruling that Bush's assertion of detention powers was justified.