Appeals court weighs who's an enemy combatant

Enemy combatant Marri says the US can't hold him without charge indefinitely.

from the October 31, 2007 edition

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Otherwise, government lawyers say in a brief, the president would be "without the authority to use the military force necessary to prevent individuals identically situated with Mohamed Atta and his cohorts from planning and executing another September 11 attack."

The president can use his military detention power against anyone in the US – including American citizens and foreign nationals who are in the US under a valid visa, government lawyers say. Once designated an enemy combatant and held in military custody, the detainee is stripped of most legal and constitutional protections and is held as if he had been taken prisoner on a traditional battlefield.

Lawyers for Marri say the Bush administration's use of military power against civilians in the US destroys the critical distinction between civilian and military jurisdiction.

"The government has sought here an unprecedented and wholesale erasure of that line," says Jonathan Hafetz in his brief to the court on behalf of Marri.

If endorsed by the judiciary, the administration's position would "allow a president, by the mere stroke of a pen, to avoid the criminal process in any case involving allegations of terrorism," writes Mr. Hafetz, who is also a lawyer at the Brennan Center for Justice at New York University School of Law in New York City.

"Our argument is that [Marri] is being held illegally. Either charge him or release him," says Hafetz in an interview. "They can't just lock him up."

In June, a Fourth Circuit panel decided 2 to 1 that Bush overstepped his constitutional authority in the Marri case. Now, the full appeals court is reviewing that decision.

In a brief, Assistant Solicitor General Eric Miller told the judges that the earlier appeals court ruling "poses an immediate and potentially grave threat to national security" by limiting the president's authority to capture and detain Al Qaeda agents.

Hafetz disputes the suggestion that national security is in peril. His client was "captured" by the military in a jail cell where he had been held within the criminal-justice system by the federal government for 18 months and was about to stand trial. Nothing prevents his return to the criminal-justice system, Hafetz says.

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