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Detainee ruling rejects Bush terror-war tactic

An appeals court said Monday it retains jurisdiction to decide military-custody issue.

By Staff writer / June 13, 2007


Suspected Al Qaeda sleeper agent Ali Saleh al-Marri had been held for four years in military detention – with no indication from the US government when or how his imprisonment might end.

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On the surface, his treatment seemed no different than any of the hundreds of terror suspects held at Guantánamo Bay, Cuba. But Mr. Marri is confined in a military brig in the United States, not Cuba.

On Monday, that difference proved decisive in prompting a federal appeals court panel to reject what had been a sweeping argument by the Justice Department. Citing the recently enacted Military Commissions Act of 2006, government lawyers last fall said the law had stripped the federal courts of jurisdiction to hear Marri's case.

As a noncitizen who had been designated an enemy combatant, Marri had no right to test the legality of his indefinite detention through the usual habeas corpus process even though he was in the US under a valid student visa at the time of his arrest.

Legal scholars had highlighted the dire implications of the government's position. "Such a statutory construction would create an unprecedented and unconstitutional distinction between the rights of citizens and non-citizens and would permit the government to effectively 'disappear' non-citizens into legal black holes," wrote New York lawyer Paul Smith in a friend-of-the-court brief filed on behalf of the Center for National Security Studies.

In its 86-page decision released on Monday, the Fourth Circuit Court of Appeals agreed with that basic argument, rejecting the Bush administration's broad assertion that the courts had been stripped of jurisdiction. All three judges on the panel agreed that the Military Commissions Act did not undercut Marri's constitutional right to the protections of habeas corpus. As a person present on US soil he is entitled to such protection, the court said.

But the appeals court panel split, 2-to-1, on how other constitutional protections should apply to Marri. Judges Diana Gribbon Motz and Roger Gregory concluded that President Bush overstepped his authority when he ordered Marri's indefinite detention as an enemy combatant. US District Judge Henry Hudson dissented to that portion of the ruling.

Specifically the majority judges said the president's actions were not authorized under Congress's 2001 Authorization for Use of Military Force against Al Qaeda. In addition, they said the indefinite detention was not authorized under the president's inherent constitutional authority as commander in chief.

The judges ordered Marri's release from military custody. But that order is expected to be stayed pending a government appeal to the entire Fourth Circuit.

The appeals process will likely take at least three to four months and could set the stage for a sharply divided court, says University of Richmond Law School Professor Carl Tobias.

Professor Tobias says the court's chief judge is expected to move from active status to senior status in July. He says the remaining active judges might split, 6-to-5, on the central issues of presidential authority in the Marri case. "It is very close," he says.

The jurisdictional issue may be another matter.

It is unclear whether the government will seek to revive its argument that the Military Commissions Act strips the court of jurisdiction to hear Marri's case.

In her ruling on the jurisdiction question, Judge Motz noted an inconsistency in the government's argument.