Ruling another setback for Bush terror strategy

RICHMOND, Va. — A divided panel from a conservative federal appeals court delivered a harsh rebuke to the Bush administration's anti-terrorism strategy Monday, ruling that U.S. residents cannot be locked up indefinitely as "enemy combatants" without being charged.

The three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that the government should charge Ali al-Marri, a legal U.S. resident and the only suspected enemy combatant on American soil, or release him from military custody.

The federal Military Commissions Act doesn't strip al-Marri of his constitutional right to challenge his accusers in court, the judges said in Monday's 2-1 decision.

"Put simply, the Constitution does not allow the president to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them 'enemy combatants,' " the court said.

Such detention "would have disastrous consequences for the Constitution — and the country," Judge Diana Motz wrote in the majority opinion, which was joined by Judge Roger Gregory. Judge Henry Hudson dissented.

"This is a landmark victory for the rule of law and a defeat for unchecked executive power," al-Marri's lawyer, Jonathan Hafetz, said in a statement. "It affirms the basic constitutional rights of all individuals — citizens and immigrants — in the United States."

The government intends to ask the full 4th Circuit to hear the case, Justice Department spokesman Dean Boyd said. Many expect the case to eventually reach the Supreme Court.

"The president has made clear that he intends to use all available tools at his disposal to protect Americans from further al-Qaida attack, including the capture and detention of al-Qaida agents who enter our borders," Boyd said in a statement.

Return to civilian court

The court said its ruling doesn't mean al-Marri should be set free. Instead, he can be returned to the civilian court system and tried on criminal charges.

In his dissent, Hudson said the government properly detained al-Marri as an enemy combatant.

"Although al-Marri was not personally engaged in armed conflict with U.S. forces, he is the type of stealth warrior used by al-Qaida to perpetrate terrorist acts against the United States," wrote Hudson, who was appointed to the federal bench by President Bush. The two other judges were appointed by President Clinton.

The decision is the latest in a series of court rulings against the Bush administration's anti-terrorism program.

Last August, a federal judge in Detroit said the government's domestic-spying program violated constitutional rights to free speech and privacy, and the constitutional separation of powers. Five months later, the Bush administration announced it would allow judicial review of the spying program run by the National Security Agency.

A year ago, the Supreme Court threw out Bush's system of military trials for detainees at Guantánamo Bay, saying he had exceeded his authority and violated international treaties. The Republican-led Congress then pushed through legislation authorizing war-crime trials for the detainees and denying them access to civilian courts.

Prosecution barred

But last week, military judges barred the Pentagon from prosecuting two of the Guantánamo detainees because the government had failed to identify them as "unlawful" enemy combatants, as required by Congress. The decisions were a blow to efforts to begin prosecuting dozens of detainees the government regards as the nation's most dangerous terrorism suspects.

Al-Marri has been held in solitary confinement in the Navy brig in Charleston, S.C., since June 2003. The Qatar native has been detained since his December 2001 arrest at his home in Peoria, Ill., as a material witness to the Sept. 11, 2001, terrorist attacks. He moved to Peoria with his wife and five children the day before the attacks to study for a master's degree at Bradley University.

Federal investigators found credit-card numbers on al-Marri's laptop computer and charged him with credit-card fraud. Upon further investigation, the government said, agents found evidence that al-Marri had links to al-Qaida terrorists and was a national-security threat. Authorities shifted al-Marri's case from the criminal system and moved him to indefinite military detention.

Seeking to challenge

Al-Marri has denied the government's allegations and is seeking to challenge the government's evidence and cross-examine its witnesses in court. Hafetz said prosecutors haven't charged his client because they lack evidence, "or the evidence they've obtained is through torture, unreliable or unacceptable in civilized society."

Al-Marri is the only U.S. resident held as an enemy combatant within the U.S.

Jose Padilla, who is a U.S. citizen, had been held as an enemy combatant in a Navy brig for 3 ½ years before he was hastily added to an existing criminal case in Miami in November 2005, a few days before a Supreme Court deadline for Bush administration briefs on the question of the president's powers to continue holding him in military prison without charge.

Yaser Hamdi, an American citizen captured in Afghanistan in 2001, was released to his family in Saudi Arabia in October 2004 after the Justice Department said he no longer posed a threat to the United States. As a condition of his release, he gave up U.S. citizenship.

Potential misuse of law

If the government's stance were upheld, civil-liberties groups said, the Justice Department could use terrorism law to hold anyone indefinitely and strip them of the right to use civilian courts to challenge their detention.

The Bush administration's attorneys had urged the federal appeals panel to dismiss al-Marri's challenge, arguing that the Military Commissions Act (MCA) stripped the courts of jurisdiction to hear cases of detainees who are declared enemy combatants. The court, however, said in Monday's opinion that the act doesn't apply to al-Marri, who wasn't captured outside the U.S. or detained at Guantánamo Bay or in another country, and who has not received a combatant status review tribunal.

The court also said the government failed to back up its argument that the Authorization for Use of Military Force, enacted by Congress immediately after the Sept. 11 attacks, gives the president broad powers to detain al-Marri as an enemy combatant.

The act neither classifies certain civilians as enemy combatants, nor otherwise authorizes the government to detain people indefinitely, the court ruled.