Original author: Adam Liptak
Source: The New York Times
URL: [link]
Date: June 11, 2007


In a stinging rejection of one of the Bush administration’s central
assertions about the scope of executive authority to combat terrorism, a
federal appeals court ordered the Pentagon to release a man being held
as an enemy combatant.

“To sanction such presidential authority to order the military to seize
and indefinitely detain civilians, Judge Diana Gribbon Motz wrote, “even
if the President calls them ‘enemy combatants,’ would have disastrous
consequences for the Constitution — and the country.”

“We refuse to recognize a claim to power,” Judge Motz added, “that would
so alter the constitutional foundations of our Republic.”

The ruling was handed down by a divided three-judge panel of the United
States Court of Appeals for the Fourth Circuit, in Richmond, Va., in the
case of Ali al-Marri, a citizen of Qatar and the only person on the
American mainland known to be held as an enemy combatant.Mr. Marri, whom the government calls a sleeper agent for Al Qaeda, was
arrested on Dec. 12, 2001, in Peoria, Ill., where he was living with his
family and studying computer science at Bradley University.

He has been held for the last four years at the Navy Brig in Charleston,
S.C.

Judge Motz wrote that Mr. Marri may well be guilty of serious crimes.
But she said that the government cannot circumvent the civilian criminal
justice system through military detention.

Mr. Marri was charged with credit-card fraud and lying to federal agents
after his arrest in 2001, and he was on the verge of a trial on those
charges when he was moved into military detention in 2003.

The government contended, in a partly declassified declaration from a
senior defense intelligence official, Jeffrey N. Rapp, that Mr. Marri
was a Qaeda sleeper agent sent to the United States to commit mass
murder and disrupt the banking system.

Two other men have been held as enemy combatants on the American
mainland since the Sept. 11 attacks. One, Yaser Hamdi, was freed and
sent to Saudi Arabia after the United States Supreme Court allowed him
to challenge his detention in 2004.

The other, Jose Padilla, was transferred to the criminal justice system
last year just as the Supreme Court was considering whether to review
his case. He is now on trial on terrorism charges in federal court in
Miami.

A dissenting judge in today’s decision, Henry E. Hudson, visiting from
the Federal District Court for the Eastern District of Virginia, wrote
that President Bush “had the authority to detain al-Marri as an enemy
combatant or belligerent” because “he is the type of stealth warrior
used by Al Qaeda to perpetrate terrorist acts against the United States.”

Jonathan Hafetz, the litigation director of the Liberty and National
Security Project of the Brennan Center for Justice at New York
University School of Law and one of Mr. Marri’s lawyers, said of the
court’s decision: “This is landmark victory for the rule of law and a
defeat for unchecked executive power. It affirms the basic
constitutional rights of all individuals — citizens and immigrants - in
the United States.”

Writing for the majority, Judge Motz ordered the trial judge in the case
to issue a writ of habeas corpus directing the Pentagon “within a
reasonable period of time” to do one of several things with Mr. Marri.
He may be charged in the civilian court system; he may be deported; or
he may be held as a material witness; or he may be released.

“But military detention of al-Marri,” Judge Motz wrote, “must cease.”

Copyright 2007 The New York Times Company