Test of Bush's terror-fighting authority heads to higher court

Before the federal appeals judges: What rights does a noncitizen legal resident have when the government names him an enemy combatant?

from the January 31, 2007 edition

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Marri's lawyers say the provision only applies to noncitizen enemy combatants detained outside US borders like those being held at the Guantánamo Bay, Cuba, naval base. If the court rules that the Military Commissions Act does apply to detainees held in the US, it would amount to an unconstitutional suspension of the writ of habeas corpus, they say.

The Bush administration argues that the new law divests jurisdiction in "all cases, without exception" in which a noncitizen enemy combatant is being held by the US. It applies regardless of the location of the detention, government lawyers say.

Hafetz says that approach threatens to blur the distinction between military and civilian jurisdiction established in a Civil War-era ruling by the Supreme Court.

Soldiers and combatants fall within the military sphere of courts martial, tribunals, and commissions, while civilians are governed by the civilian court system. "It is the essence of our society where civilian rule and civilian institutions are supreme and the military doesn't have the power to go in and arrest people in their homes and lock them in military jails," Hafetz says. "That is what separates a country that is democratic and committed to the rule of law from a country that is a police state."

In his brief, Solicitor General Clement says that after the 9/11 attacks, Congress authorized Mr. Bush to use all "necessary and appropriate force," including detention of enemy combatants, to "protect United States citizens both at home and abroad." The government reads the provision as authorizing detentions both at home and abroad.

In determining Marri is an enemy combatant, Bush concluded in part: "Mr. Marri represents a continuing, present, and grave danger to the national security of the United States."

A declassified affidavit prepared by a US intelligence official says that Marri attended an Al Qaeda training camp between 1996 and 1998. "Marri met personally with Osama Bin Laden and volunteered for a martyr mission or to do anything else that Al-Qaeda requested," the affidavit says.

Marri worked with two senior Al Qaeda leaders prior to his arrival in the US, Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and Mustafa Ahmed al-Hawsawi, the key moneyman of the 9/11 attacks, the affidavit says. In addition, Marri's younger brother is a detainee at Guantánamo Bay.

Al Qaeda asked Marri to enroll as a student and quietly explore ways to hack into bank records to disrupt the US financial system, the document says. He had also been trained in the use of poisons and was researching poisons similar to the hydrogen cyanide weapon used in a terror attack on the Japanese subway system by the group Aum Shinrikyo, the affidavit says.

Marri arrived in the US with his wife and five children one day before the 9/11 attacks. He had been given at least $13,000 by Al Qaeda, the affidavit says.

Marri's lawyers say much of the information in the affidavit is hearsay. They are asking for an opportunity to challenge the veracity of the allegations in court by investigating whether the intelligence information was obtained from Khalid Sheikh Mohammed and others through coercive interrogations or torture.

Hafetz says that even if everything the government says about Marri is true (and he stresses that he does not concede that it is true), the central point of his case is that Marri should be charged with a crime and prosecuted, not merely held indefinitely by the military based on an affidavit that has never endured the careful scrutiny of cross-examination in open court.

Earlier, a federal judge in South Carolina agreed with the government that Marri could be held as an enemy combatant based on hearsay evidence contained in an intelligence affidavit. The court said Marri was given an opportunity to present a case that he was wrongly accused, but that he "squandered" that opportunity. Short of making a stronger initial showing that he was innocent, Marri has no right to cross-examine government officials or more deeply investigate the government's allegations against him, the court ruled.

Marri is appealing that decision.

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