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<a href="http://www.nytimes.com/2007/06/12/washington/12combatant.html?em&ex=1181793600&en=9fc7e9b4322d617c&ei=5087%0A" eudora="autourl">
http://www.nytimes.com/2007/06/12/washington/12combatant.html?em&ex=1181793600&en=9fc7e9b4322d617c&ei=5087%0A<br>
<br>
</a></font><font size=3>New York Times<br>
June 12, 2007<br><br>
</font><h1><b>Judges Say U.S. Can’t Hold Man as ‘Combatant’
</b></h1><font size=3>By
</font>
<a href="http://topics.nytimes.com/top/reference/timestopics/people/l/adam_liptak/index.html?inline=nyt-per">
<font size=3 color="#000066">ADAM LIPTAK</a><br>
</font><font size=3>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.<br>
<br>
The ruling came in the case of
</font>
<a href="http://topics.nytimes.com/top/reference/timestopics/people/m/ali_saleh_kahlah_al_marri/index.html?inline=nyt-per">
<font size=3 color="#000066">Ali al-Marri</a></font><font size=3>, a
citizen of
</font>
<a href="http://topics.nytimes.com/top/news/international/countriesandterritories/qatar/index.html?inline=nyt-geo">
<font size=3 color="#000066">Qatar</a></font><font size=3> 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.<br>
“But military detention of al-Marri must cease,” Judge Diana Gribbon Motz
wrote for the majority of a divided three-judge panel.<br>
<br>
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.<br>
<br>
“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.”<br>
<br>
“We refuse to recognize a claim to power,” Judge Motz added, “that would
so alter the constitutional foundations of our republic.”<br>
<br>
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.<br>
<br>
“Al-Marri is an individual who trained at
</font>
<a href="http://topics.nytimes.com/top/reference/timestopics/people/b/osama_bin_laden/index.html?inline=nyt-per">
<font size=3 color="#000066">Osama bin Laden</a></font><font size=3>’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
</font>
<a href="http://topics.nytimes.com/top/reference/timestopics/organizations/a/al_qaeda/index.html?inline=nyt-org">
<font size=3 color="#000066">Al Qaeda</a></font><font size=3> sleeper
agent and to explore methods of disrupting the U.S. financial
system.”<br>
<br>
“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.”<br>
<br>
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. <br>
<br>
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.<br>
<br>
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.<br>
<br>
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.”<br>
<br>
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.<br>
<br>
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,
</font>
<a href="http://topics.nytimes.com/top/reference/timestopics/people/p/jose_padilla/index.html?inline=nyt-per">
<font size=3 color="#000066">Jose Padilla</a></font><font size=3>, was
transferred to the criminal justice system last year. He is now on trial
on terrorism charges in federal court in Miami.<br>
<br>
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.”<br>
<br>
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.” <br>
<br>
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.<br>
<br>
Because Mr. Marri was not alleged to have fought with the
</font>
<a href="http://topics.nytimes.com/top/reference/timestopics/organizations/t/taliban/index.html?inline=nyt-org">
<font size=3 color="#000066">Taliban</a></font><font size=3> 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.”<br>
<br>
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.”<br>
<br>
Judges Motz and Gregory were appointed by President
</font>
<a href="http://topics.nytimes.com/top/reference/timestopics/people/c/bill_clinton/index.html?inline=nyt-per">
<font size=3 color="#000066">Bill Clinton</a></font><font size=3>, and
Judge Hudson by Mr. Bush.<br>
<br>
Jonathan Hafetz, one of Mr. Marri’s lawyers and the litigation director
of the Liberty and National Security Project of the
</font>
<a href="http://topics.nytimes.com/top/reference/timestopics/organizations/b/brennan_center_for_justice/index.html?inline=nyt-org">
<font size=3 color="#000066">Brennan Center for
Justice</a></font><font size=3> at
</font>
<a href="http://topics.nytimes.com/top/reference/timestopics/organizations/n/new_york_university/index.html?inline=nyt-org">
<font size=3 color="#000066">New York University</a></font><font size=3>
School of Law, said a contrary ruling could have had devastating
consequences.<br>
<br>
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.”<br>
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.<br>
<br>
Still, White House critics said the ruling was only the latest in a
series of setbacks for the administration. <br>
<br>
“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
</font>
<a href="http://topics.nytimes.com/top/reference/timestopics/organizations/h/human_rights_watch/index.html?inline=nyt-org">
<font size=3 color="#000066">Human Rights Watch</a></font><font size=3>.
“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.” <br>
<br>
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. <br>
<br>
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.”<br><br>
<br>
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