‘Enemy Combatant’ Detention is Ruled Illegal

By Adam Liptak

In a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism, a federal appeals court ruled Monday that the Pentagon may not continue to detain a man being held in the United States as an “enemy combatant.”

The ruling was handed down by a divided three-judge panel of the United States Court of Appeals for the 4th Circuit, in Richmond, Virginia, in the case of Ali al-Marri, a citizen of Qatar and the only person on the American mainland known to be held as an enemy combatant.

Writing for the majority, Judge Diana Gribbon Motz ordered the trial judge in the case to issue a writ of habeas corpus directing the Pentagon “within a reasonable period of time” to do one of several things with Marri. He may be charged in the civilian court system; he may be deported; he may be held as a material witness; or he may be released.

“But military detention of al-Marri,” Motz wrote, “must cease.”

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians,” 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,” Motz added, “that would so alter the constitutional foundations of our republic.”

Marri, whom the government calls a sleeper agent for Al Qaeda, was arrested Dec. 12, 2001, in Peoria, Illinois, where he was living with his family and studying computer science at Bradley University.

He has been held for four years on a navy brig in Charleston, South Carolina. Motz wrote that Marri may well be guilty of serious crimes. But she said the government could not circumvent the civilian criminal justice system through military detention.

Marri was charged with credit card fraud and lying to federal agents after his arrest in 2001, and he was on the verge of a trial on those charges when he was moved into military detention in 2003.

The government contended, in a partly declassified declaration from a senior defense intelligence official, that Marri was a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.

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 United States Supreme Court allowed him to challenge his detention in 2004.

The other, Jose Padilla, was transferred to the criminal justice system last year just as the Supreme Court was considering whether to review his case. He is now on trial on terrorism charges in federal court in Miami.

A dissenting judge in the decision on Monday, Henry Hudson, visiting from the Federal District Court for the Eastern District of Virginia, wrote that President George W. 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.”

Jonathan Hafetz, one of Marri’s lawyers and the litigation director of the Liberty and National Security Project of the Brennan Center for Justice at New York University School of Law, said of the court’s decision: “This is a landmark victory for the rule of law and a defeat for unchecked executive power. It affirms the basic constitutional rights of all individuals – citizens and immigrants – in the United States.”

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