[Ppnews] Judges Say U.S. Can't Hold Man as 'Combatant'

[Political Prisoner News]

http://www.nytimes.com/2007/06/12/washington/12combatant.html?em&ex=1181793600&en=9fc7e9b4322d617c&ei=5087%0A

New York Times
June 12, 2007


Judges Say U.S. Can’t Hold Man as ‘Combatant’

By 
<http://topics.nytimes.com/top/reference/timestopics/people/l/adam_liptak/index.html?inline=nyt-per>ADAM 
LIPTAK
The federal appeals court in Richmond, Va., ruled 
yesterday that the president may not declare 
civilians in this country to be “enemy 
combatants” and have the military hold them 
indefinitely. The ruling was a stinging rejection 
of one of the Bush administration’s central 
assertions about the scope of executive authority to combat terrorism.

The ruling came in the case of 
<http://topics.nytimes.com/top/reference/timestopics/people/m/ali_saleh_kahlah_al_marri/index.html?inline=nyt-per>Ali 
al-Marri, a citizen of 
<http://topics.nytimes.com/top/news/international/countriesandterritories/qatar/index.html?inline=nyt-geo>Qatar 
now in military custody in Charleston, S.C., who 
is the only person on the American mainland known 
to be held as an enemy combatant. The court said 
the administration may charge Mr. Marri with a 
crime, deport him or hold him as a material 
witness in connection with a grand jury investigation.
“But military detention of al-Marri must cease,” 
Judge Diana Gribbon Motz wrote for the majority of a divided three-judge panel.

The court, the United States Court of Appeals for 
the Fourth Circuit, said a fundamental principle 
is at stake: military detention of someone who 
had lawfully entered the United States and 
established connections here, it said, violates the Constitution.

“To sanction such presidential authority to order 
the military to seize and indefinitely detain 
civilians,” Judge Motz wrote, “even if the 
president calls them ‘enemy combatants,’ would 
have disastrous consequences for the Constitution — and the country.”

“We refuse to recognize a claim to power,” Judge 
Motz added, “that would so alter the 
constitutional foundations of our republic.”

In a statement, the Justice Department said it 
would ask the full Fourth Circuit to rehear the 
case, which could eventually reach the Supreme 
Court. The statement added that Mr. Marri 
represented a danger to the United States.

“Al-Marri is an individual who trained at 
<http://topics.nytimes.com/top/reference/timestopics/people/b/osama_bin_laden/index.html?inline=nyt-per>Osama 
bin Laden’s terrorist training camp in 
Afghanistan,” the Justice Department statement 
said. “In the summer of 2001, he met with Khalid 
Shaykh Muhammed, the mastermind of the September 
11th attacks, and entered the United States just 
before September 11 to serve as an 
<http://topics.nytimes.com/top/reference/timestopics/organizations/a/al_qaeda/index.html?inline=nyt-org>Al 
Qaeda sleeper agent and to explore methods of 
disrupting the U.S. financial system.”

“The president has made clear,” the statement 
continued, “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.”

Mr. Marri was arrested on Dec. 12, 2001, in 
Peoria, Ill., where he was living with his family 
and studying computer science at Bradley 
University. He was charged with credit-card fraud 
and lying to federal agents, and he was on the 
verge of a trial on those charges when he was 
moved into military detention in 2003. He has 
been held for the last four years at the Navy brig in Charleston.

Mr. Marri’s transfer to military custody, Judge 
Motz wrote, is “puzzling at best.” The usual 
reason offered for the indefinite detention 
without charges of enemy combatants is to 
immobilize them and prevent them from returning 
to the battlefield. But Mr. Marri was already held pending his criminal trial.

Judge Motz suggested that the government’s 
purpose in moving Mr. Marri to military custody 
was one the Supreme Court held improper in a 2004 
decision, Hamdi v. Rumsfeld, that of subjecting him to harsh interrogation.

For his first 16 months in the brig, Mr. Marri 
was allowed no contact with his family or 
lawyers. He was, a lawsuit filed on his behalf in 
2005 said, denied basic necessities and subjected 
to extreme sensory deprivation. Interrogators 
threatened to send him to Egypt or Saudi Arabia, 
the lawsuit said, “where, they told him, he would 
be tortured and sodomized and where his wife would be raped in front of him.”

Judge Motz, joined by Judge Roger L. Gregory, 
wrote that Mr. Marri might well be guilty of 
serious crimes. But she said the government could 
not circumvent the civilian criminal justice 
system through military detention. The court 
reversed a lower-court decision that had denied 
Mr. Marri’s challenge to his detention.

Two other men have been held as enemy combatants 
on the American mainland since the Sept. 11 
attacks. One, Yaser Hamdi, was freed and sent to 
Saudi Arabia after the Supreme Court allowed him 
to challenge his detention in 2004. The other, 
<http://topics.nytimes.com/top/reference/timestopics/people/p/jose_padilla/index.html?inline=nyt-per>Jose 
Padilla, was transferred to the criminal justice 
system last year. He is now on trial on terrorism 
charges in federal court in Miami.

All three judges yesterday agreed that a new law, 
the Military Commissions Act, did not defeat the 
court’s jurisdiction. The law says the federal 
courts have no jurisdiction to hear challenges 
from any noncitizen “who has been determined by 
the United States to have been properly detained as an enemy combatant.”

Unlike the men held at Guantánamo Bay, Cuba, Mr. 
Marri has not yet received even the cursory 
review of his designation as enemy combatant, 
performed by a military panel known as a 
combatant status review tribunal. The Military 
Commissions Act, Judge Motz concluded, “was not 
intended to, and does not, apply to aliens like 
al-Marri, who have legally entered, and are 
seized while legally residing in, the United States.”

The majority and the dissenting judge, Judge 
Henry Hudson, visiting from the Federal District 
Court for the Eastern District of Virginia, 
differed mainly on whether civilians may ever be 
classified as enemy combatants.

Because Mr. Marri was not alleged to have fought 
with the 
<http://topics.nytimes.com/top/reference/timestopics/organizations/t/taliban/index.html?inline=nyt-org>Taliban 
or the armed forces of any enemy nation or to 
have engaged in combat with United States forces, 
Judge Motz wrote, Mr. Bush was powerless to have 
the military detain Mr. Marri any more than he 
could have ordered the military detentions of 
“the Unabomber or the perpetrators of the Oklahoma City bombing.”

In dissent, Judge Hudson wrote that Mr. Bush “had 
the authority to detain al-Marri as an enemy 
combatant or belligerent” because “he is the type 
of stealth warrior used by Al Qaeda to perpetrate 
terrorist acts against the United States.”

Judges Motz and Gregory were appointed by 
President 
<http://topics.nytimes.com/top/reference/timestopics/people/c/bill_clinton/index.html?inline=nyt-per>Bill 
Clinton, and Judge Hudson by Mr. Bush.

Jonathan Hafetz, one of Mr. Marri’s lawyers and 
the litigation director of the Liberty and 
National Security Project of the 
<http://topics.nytimes.com/top/reference/timestopics/organizations/b/brennan_center_for_justice/index.html?inline=nyt-org>Brennan 
Center for Justice at 
<http://topics.nytimes.com/top/reference/timestopics/organizations/n/new_york_university/index.html?inline=nyt-org>New 
York University School of Law, said a contrary 
ruling could have had devastating consequences.

Under the administration’s theory, Mr. Hafetz 
said, “the executive could effectively disappear 
people by picking up any immigrant in this 
country, locking them in a military jail and 
holding the keys to the courthouse. This is 
exactly what separates a country that is 
democratic and committed to the rule of law from 
a country that is a police state.”
The decision appears unlikely to have any 
immediate effect on the men held at Guantánamo. 
Judge Motz emphasized that the court’s analysis 
was limited to those with substantial connections 
to the United States who had been seized and detained within its borders.

Still, White House critics said the ruling was 
only the latest in a series of setbacks for the administration.

“Last Monday, two military judges handpicked to 
preside over the Guantánamo Bay trials rejected 
the claim that a presidential order alone was 
sufficient to give the courts jurisdiction over 
the detainees,” said Jennifer Daskal, advocacy 
director of the United States Program of 
<http://topics.nytimes.com/top/reference/timestopics/organizations/h/human_rights_watch/index.html?inline=nyt-org>Human 
Rights Watch. “And today, one of the nation’s 
most conservative courts squarely rejected the 
president’s unprecedented assertion that he, 
alone, could hand out the label of ‘enemy 
combatant’ without any sort of independent court review.”

The appeals court yesterday ordered the trial 
judge in the case to issue a writ of habeas 
corpus directing the secretary of defense to 
release Mr. Marri from military custody “within a 
reasonable period of time to be set by the 
district court.” The government can, Judge Motz 
wrote, transfer Mr. Marri to civilian authorities 
to face criminal charges, initiate deportation 
proceedings against him, hold him as a material 
witness in connection with a grand jury 
proceeding or detain him for a limited time under 
a provision of the U.S.A. Patriot Act.

But the military cannot hold him, Judge Motz 
wrote. “The president cannot eliminate,” she 
wrote, “constitutional protections with the 
stroke of a pen by proclaiming a civilian, even a 
criminal civilian, an enemy combatant subject to 
indefinite military detention.”



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