Detainee ruling rejects Bush terror-war tactic

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.

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.

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."

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.