In a setback for the Bush administration, a federal appeals court ruled Monday that an alleged Al Qaeda operative arrested in the United States and detained in military custody for four years cannot be held as an enemy combatant.
The 2-1 ruling by the U.S. 4th Circuit Court of Appeals in Richmond, Va., ordered Ali Saleh Kahlah al-Marri released from a South Carolina military brig’s isolation cell, where he has been held since he was declared an enemy combatant. U.S. authorities have described al-Marri as an associate of Al Qaeda operations chief Khalid Shaikh Mohammed who came to the United States on Sept. 10, 2001, to help a "second wave" of sleeper agents bent on striking America.
Monday’s ruling held that neither the expanded post-Sept. 11 wartime powers nor the Military Commissions Act passed by Congress last year eliminated al-Marri’s constitutional rights to challenge the government’s allegations against him in a court of law.
"This is a landmark ruling for all individuals in this country, rejecting the administration’s unprecedented assertion that it can treat the entire world, including the United States, as a battlefield and jail people for life without charge and without trial simply because he labels them enemy combatants," said Jonathan L. Hafetz, litigation director of the Liberty & National Security Project at the New York University School of Law and al-Marri’s lead counsel.
Habeas corpus, which is used to challenge imprisonment and enforce due-process rights, "is what stands between the United States and a police state," Hafetz said.
However, the decision apparently applies only to al-Marri and stands a good chance of being overturned on appeal.
In her 77-page ruling for the majority, Judge Diana Gribbon Motz said al-Marri may be guilty of serious crimes, but sanctioning the indefinite detention of civilians would have "disastrous consequences for the Constitution — and the country."
"Put simply," she wrote, "the Constitution does not allow the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if they call them ‘enemy combatants.’ "
Motz said the government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in terrorism investigations or detain him for a limited time pursuant to the Patriot Act. "But military detention of al-Marri must cease," she wrote.
In a dissenting opinion, visiting Judge Henry E. Hudson said that "definitive precedent is admittedly sparse" but that the administration does have the right to hold al-Marri as an enemy combatant.
The Justice Department issued a statement saying that it was "disappointed with today’s divided decision" and that it would appeal the ruling to the entire appeals court.
Monday’s ruling does not have a direct effect on the 385 detainees at Guantanamo Bay, Cuba, because it addresses only those held within the United States.
Al-Marri, a citizen of Qatar and Saudi Arabia, is believed to be the only person on U.S. soil held as an enemy combatant. He was first detained in December 2001 at his home in Peoria, Ill., on a material witness warrant, after moving there with his wife and children to study for a master’s degree. He was later indicted in Illinois for credit-card fraud, making false statements to the FBI and other charges. He pleaded not guilty but was designated an enemy combatant before his trial began.
Al-Marri’s lawyers said their client insists he has had nothing to do with Al Qaeda.
Al-Marri, 41, was given the news of the ruling Monday by Andrew J. Savage III, the private attorney in Charleston, S.C., who has worked most closely with him and is handling the case without charge. "When I told him, he put the phone down, got down and prayed to Allah," Savage said. "Then he came back on the phone and expressed a lot of gratitude to everyone involved, the judge included."
Said Steven R. Shapiro, legal director of the American Civil Liberties Union: "It is difficult to imagine a more complete repudiation of the administration’s strategy of treating suspected terrorists as enemy soldiers who can be subject to indefinite detention by the military without charges or trial."
The Justice Department said Monday that "the president has made clear that he intends to use all available tools at his disposal to protect Americans from further Al Qaeda attack, including the capture and detention of Al Qaeda agents who enter our borders."
The department’s unsigned statement said that al-Marri trained at "Osama bin Laden’s terrorist training camp in Afghanistan" and that in the summer of 2001 he met with Mohammed, the self-described mastermind of the Sept. 11 attacks, to discuss how he could enter the United States and "explore methods of disrupting the U.S. financial system."
Some U.S. officials and legal experts suggested that a government appeal would have a good chance of succeeding, noting that Motz and Judge Roger Gregory were nominated by President Clinton, while the overall 4th Circuit is considered among the most conservative in the country. If that appeal fails, they said, the administration is likely to take the case to another court with a conservative majority: the U.S. Supreme Court.
