Appeals court weighs who's an enemy combatant
Enemy combatant Marri says the US can't hold him without charge indefinitely.
By Warren Richey | Staff writer of The Christian Science Monitorfrom the October 31, 2007 edition
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Washington - President Bush wants as much flexibility as possible to protect the United States from a repeat of the 9/11 terror attacks.
But does he have the authority to whisk a civilian in the US suspected of being an Al Qaeda sleeper agent into indefinite military detention without charge?
That's the question on Wednesday confronting all 10 judges of the Fourth US Circuit Court of Appeals in Richmond, Va., in a case examining the treatment of a graduate student from Qatar named Ali Saleh al-Marri.
The case raises one of the most significant unresolved constitutional questions in the war on terror, legal analysts say, and could set the stage for a landmark decision later at the US Supreme Court.
Mr. Marri has been held in an isolated wing of the naval brig in Charleston, S.C., for more than four years after being designated an enemy combatant by Mr. Bush in June 2003.
Government officials suspect Marri came to the US as an Al Qaeda sleeper agent to participate in a second wave of terror attacks after 9/11. Their suspicions are based in large part on information obtained through coercive interrogations conducted by intelligence officials overseas.
Coerced statements are not considered reliable enough to be admitted as evidence in an American courtroom. That means it could be difficult to win a conviction against Marri should the government attempt a terror-conspiracy prosecution within the criminal-justice system.
The Bush administration's alternative has been to simply declare the suspect an enemy combatant and order him detained in military custody, potentially for the rest of his life.
At issue before the appeals court is who can validly be held by US forces as an enemy combatant in the war on terror. The law of war permits the military to take war prisoners and hold them in detention facilities to prevent enemy combatants from rejoining the battle.
There is no doubt that someone captured while using an AK-47 on a battlefield in Afghanistan can legitimately be detained by the American military for the duration of the conflict.
What is less clear is whether the president can use his power as commander in chief to order similar open-ended military detentions of civilians in the US who are suspected of conspiring with Al Qaeda to commit future acts of terrorism in America.
The Bush administration argues that the battlefield in the global war on terror extends to every corner of the US itself. It does not just apply to those engaged in traditional combat on a raging battlefield. It also applies to those who secretly associate themselves with Al Qaeda and come to the US to conduct hostile, warlike acts on behalf of Al Qaeda.
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