[Infowarrior] - Federal Court Rules in Favor of 'Enemy Combatant'

[Richard Forno]

Federal Court Rules in Favor of 'Enemy Combatant'

By Carol D. Leonnig
Washington Post Staff Writer
Monday, June 11, 2007; 1:58 PM
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/11/AR2007061101
135.html?hpid=topnews

A federal appeals court today ruled that the U.S. government cannot
indefinitely imprison a U.S. resident on suspicion alone, and ordered the
military to either charge Ali Saleh Kahlah al-Marri with his alleged
terrorist crimes in a civilian court or release him.

The opinion is a major blow to the Bush administration's assertion that as
the president seeks to combat terrorism, he has exceptionally broad powers
to detain without charges both foreign citizens abroad and those living
legally in the United States. The government is expected to appeal the 2-1
decision handed down by a three-judge panel of the conservative U.S. Court
of Appeals for the Fourth Circuit, which is in Richmond, Va.
    
The decision is a victory for civil libertarians and Marri, a citizen of
Qatar who was a legal resident of the United States and studying in Peoria,
Ill., when he was arrested in December 2001 as a "material witness." He was
detained initially in civil prisons, then transferred to a naval brig in
Charleston, S.C. , where he has been confined for the past five years.

The government argued that Marri, who had met with al-Qaeda leader Osama bin
Laden, was sent to the United States for a second wave of terrorist attacks.

The appeals panel said President Bush overstretched his authority by
declaring Marri an "enemy combatant," because the Constitution protects both
U.S. citizens and legal residents such as Marri from an unchecked military
and from being detained without charges and a fair trial. The court rejected
the administration's claim 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 judge continued.
"Put simply, the Constitution does not allow the President to order the
military to seize civilians residing within the United States and detain
them indefinitely without criminal process, and this is so even if he calls
them 'enemy combatants.' "

Marri is the last of three U.S. residents who had been imprisoned at the
Charleston brig.

Two others have since left the 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 provided with a trial by an impartial court. Jose Padilla,
originally accused by the government of being a "dirty bomber," had also
been held in the brig. But the government, just before an impending Supreme
Court hearing on the case, chose to file much less substantial criminal
charges against Padilla in November 2005 and transferred him to a civilian
prison in Miami in January 2006.

"This is an important victory for the rights of all individuals in this
country to be free from unchecked executive detention power," said Jonathan
Hafetz, al-Marri's lawyer at the Brennan Center for Justice. "If the
government seeks to detain someone, it has the burden of producing its
evidence in a court of law."

Judge Henry Hudson, who dissented from the panel, said he agreed there was
little precedent but said Bush did have the power to determine that al-Marri
was an enemy combatant 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" that al-Marri was in the country to aid in hostile attacks on the
United States.

Marri's brother, Jarallah al-Marri was captured in January 2002 and
transported to military detention at United States Guantanamo Bay Naval Base
in Cuba.