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Detainee ruling rejects Bush terror-war tactic

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

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The court-stripping provisions in Section 7 of the Military Commissions Act say that "no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

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Government lawyers argued that both Mr. Bush and a federal district judge had determined that Marri was being properly held as an enemy combatant.

The government added that Marri was awaiting a Combat Status Review Tribunal determination to be conducted upon dismissal of his case. Combat Status Review Tribunals were set up at Guantánamo to provide detainees a measure of due process in lieu of habeas protections.

Lawyers for Guantánamo detainees say the CSRT process is not an adequate substitute for the right to petition a federal judge.

Nonetheless, all detainees at Guantánamo have been given CSRT reviews.

In contrast, Marri has never been afforded a CSRT review.

"The government's treatment of Al-Marri suggests that, despite its litigation posture, it does not actually believe that the CSRT process [in the Detainee Treatment Act and Military Commissions Act] applies to Al-Marri," Judge Motz writes in her opinion.

"In the four years since the president ordered Al-Marri detained as an enemy combatant, the government has completed CSRTs for each of the more than five hundred detainees held at Guantánamo Bay," she writes. "Yet it was not until November 13, 2006, the very day the government filed its motion to dismiss the case at hand, that the government even suggested that Al-Marri might be given a CSRT."

Motz says the government at that time presented a memo to the court written by Deputy Secretary of Defense Gordon England directing that Al-Marri be provided a CSRT hearing "upon dismissal" of the case. "This memorandum is too little too late," she writes.

Marri's lawyers praised Motz's decision. "We're pleased the court saw through the government's stunning position in this case. Had it not, 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," said Marri lawyer Jonathan Hafetz of the Brennan Center for Justice at New York University Law School, in a statement.

He added, "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 Justice Department expressed disappointment with the Fourth Circuit decision. "The president has made clear 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," the department said in a statement.

Marri, who denies he is an Al Qaeda agent, has been held since June 2003 as an enemy combatant at the Consolidated Naval Brig at Charleston, S.C.

He arrived in the US on a student visa with his wife and five children and had reportedly planned to attend Bradley University in Peoria, Ill. Instead, following the 9/11 attacks, Marri was arrested and interrogated as a suspected Al Qaeda sleeper agent sent to the US to launch a computer attack on US financial markets.

After several efforts to prosecute him, President Bush designated Marri an enemy combatant, and he was transferred to the Charleston brig. Lawyers working on Marri's behalf filed a habeas corpus petition, challenging the legality of his detention.

It is that suit that prompted the Fourth Circuit ruling on Monday.