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Pentagon Can't Hold 'Enemy Combatant,' Court Rules

James Rosen

WASHINGTON - A federal appeals court on Monday dealt President Bush another major setback in his efforts to create a system of justice for suspected terrorists, ruling that his administration can't continue the indefinite military detention of a Qatari man who was arrested in Illinois but never charged with a crime.

The 2-1 decision by a panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., found that Bush had overstepped his authority when he declared Ali al-Marri, who was in the United States legally, an "enemy combatant" and ordered the Justice Department to turn him over to the military. He's been detained for four years at the Navy brig in Charleston, S.C. 0612-01.jpg

The court ordered that Marri be turned over to civilian authorities.

"To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the president calls them `enemy combatants,' would have disastrous consequences for the Constitution and the country," the panel wrote.

The 4th Circuit said that Marri should face criminal charges in a civilian court, if the government has evidence to support a case.

"The president's constitutional powers do not allow him to order the military to seize and detain indefinitely Marri without criminal process any more than they permit the president to seize and detain without criminal process other terrorists within the United States, like the Unabomber or the perpetrators of the (1995) Oklahoma City bombing," the panel's majority wrote.

The court also said that the Bush administration's central claim that Marri didn't have a right to court review of his detention under last year's Military Commissions Act was invalid. The ruling said nothing in that law indicated that Congress had meant to limit the habeas corpus rights of civilians arrested and held in the United States.

"It's a landmark ruling which affirms the right of all individuals in this country - citizens as well as non-citizens - to habeas corpus," said Jonathan Hafetz, a lead attorney for al-Marri and a law professor at New York University's Brennan Center.

Attorney General Alberto Gonzales expressed disappointment with the decision and said the government would ask the full 4th Circuit Court to review the decision. Whatever the outcome of that process, many legal scholars expect the Supreme Court ultimately to decide the case.

"I would remind you that this is an individual who was in Osama bin Laden's training camp in 2001, met with Khalid Shaikh Mohammed, and, we believe, is in fact a dangerous individual," Gonzales said in Mobile, Ala., after meeting with law-enforcement officials.

The 4th Circuit decision was the latest in a string of court rulings that have rejected Bush administration contentions since the Sept. 11, 2001, terrorist attacks that it has special powers to hold suspected terrorists outside the normal civilian courts and military justice systems without express permission from Congress.

Legal experts said the ruling was especially significant because the 4th Circuit is among the most conservative of the federal appellate benches, a factor, some experts said, that probably weighed in the government's decision to transfer Marri from Illinois to South Carolina four years ago.

"It's a pretty broad challenge to the administration," said Scott Silliman, a Duke University law professor and former Air Force lawyer. "This is a case that needs to go to the Supreme Court. We definitely need clarity on this issue."

Andrew Savage, a Charleston lawyer who's part of Marri's legal team, said he delivered news of the ruling to Marri during a two-hour visit at the Navy brig in the port city.

"He was very excited," Savage said. "He was happy that a decision has been made. He's had nothing to look forward to."

Last week, two military judges dismissed war crimes charges against two detainees held at the U.S. military prison in Guantanamo Bay, Cuba, saying the Pentagon hadn't complied with regulations set up by Congress in the Military Commissions Act. The act was a response to a Supreme Court ruling that rejected an earlier Bush administration plan for trying detainees there.

But unlike detainees at Guantanamo, whose rights to court appeals were limited by the act, Marri was in the United States legally when he was arrested in December 2001 and therefore can contest his case in federal court, the panel's majority wrote.

Marri remains the only "enemy combatant" still held in military custody in the United States. The other two were released from the brig after they appealed their detentions.

One, Louisiana-born Yaser Esam Hamdi, was sent to Saudi Arabia, his homeland, after he agreed to renounce his right to U.S. citizenship. The other, Jose Padilla, who was born in New York City, was turned over to civilian authorities just before the Supreme Court was to hear his case. He's now on trial in Miami on charges of supporting terrorism.

Marri, 41, graduated in 1991 from Bradley University in Peoria, Ill., with a degree in computer science. After living in Qatar, he returned to Peoria with his wife and five children on Sept. 10, 2001, to obtain a graduate degree.

He was arrested in December 2001, held as a material witness and later charged in New York and Illinois with bank fraud and other crimes. The government dismissed those charges, filed Bush's declaration that he was an "enemy combatant" in June 2003 and immediately transferred him to the Navy brig in Charleston.

The government has implied that Marri was to be part of a "second wave" of attacks after the Sept. 11 tragedy, Savage said.

"If that is true and the U.S. intelligence community has uncovered that, then the American people deserve to know that and give credit to the government for ferreting that out," Savage said.

The decision was written by Judge Diana Gribbon Motz, who was appointed to the court by President Bill Clinton, and joined by Judge Roger L. Gregory, first named to the court by Clinton, but renominated by Bush. Dissenting was U.S. District Judge Henry E. Hudson, a Bush appointee who joined the panel as a visiting appeals judge.

The Marri decision doesn't apply directly to the estimated 385 detainees held at Guantanamo Bay because, unlike him, they weren't legal residents of the United States and they were arrested outside the country. Among them is Marri's brother, Jarallah.

But some analysts said the ruling would have broader impact on future court decisions.

"It's a sweeping repudiation of the administration's strategy of treating suspected terrorists like enemy soldiers rather than like criminals," said Jameel Jaffer, the national security head of the American Civil Liberties Union.

"The administration has been blurring the distinction between civilians and combatants," Jaffer said. "This decision rejects that approach."

"Delivered by arguably the most conservative court in the country, this ruling signals just how unconstitutionally the Bush administration has been conducting policy," said Rep. Jim Moran, a Virginia Democrat.

"Holding people indefinitely without charging them with a crime or even having to justify why they are being detained is un-American," Moran said.

Carol Rosenberg of The Miami Herald contributed.

© 2007 McClatchy Washington Bureau and wire service sources.

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