4th Circuit Says Government Can't Hold Man as Enemy Combatant

The federal appeals court in Richmond, Va., ruled yesterday that the president may not declare civilians in this country to be “enemy combatants” and have the military hold them indefinitely.^[1] The ruling came as a harsh rejection of one of the Bush administration’s most vital assertions about the scope of their executive authority to combat terrorism.^[2] The court, the United States Court of Appeals for the Fourth Circuit, said a fundamental principle is at stake: military detention of someone who had lawfully entered the United States and established connections here, it said, violates the Constitution.^[3]

The case of Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., is what brought down the ruling for the man who is the only person on the American mainland known to be held as an enemy combatant.^[4]

The court said the administration may charge Mr. Marri with a crime, deport him or hold him as a material witness in connection with a grand jury investigation, but the charge-less "military detention of al-Marri must cease.....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....[and w]e refuse to recognize a claim to power, that would so alter the constitutional foundations of our republic,” Judge Diana Gribbon Motz wrote for the majority of a divided three-judge panel.^[5]

In a statement, the Justice Department said it would ask the full Fourth Circuit to rehear the case, which could eventually reach the Supreme Court.^[6] The statement added that Mr. Marri represented a danger to the United States, and 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.”^[7]

Mr. Marri was arrested on Dec. 12, 2001, in Peoria, Ill., and charged with credit-card fraud and lying to federal agents.^[8] He was about to be tried on those charges when the government moved him into military detention in 2003, where he has been held for the last four years at the Navy brig in Charleston.^[9]

Judge Motz, joined by Judge Roger L. Gregory, wrote that Mr. Marri might well be guilty of serious crimes, but the government may not circumvent the civilian criminal justice system through military detention.^[10]

Only two other people have been held as enemy combatants on the American mainland since the Sept. 11, 2001. Yaser Hamdi, was freed and sent to Saudi Arabia after the Supreme Court allowed him to challenge his detention in 2004. Jose Padilla, was transferred to the criminal justice system last year. He is now on trial on terrorism charges in federal court in Miami. We have previously written about Padilla at length here.

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^[1] Adam Liptak, Judges Say U.S. Can’t Hold Man as ‘Combatant,’ New York Times, June 12, 2007, available at http://www.nytimes.com/2007/06/12/washington/12combatant.html?pagewanted=2&_r=1&hp&adxnnl=1&adxnnlx=1181664111-jI2+tcsZnVaxtiSrQRLagQ%20 (last visited June 12, 2007).
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Because Mr. Marri was not alleged to have fought with the Taliban or the armed forces of any enemy nation or to have engaged in combat with United States forces, Judge Motz wrote, Mr. Bush was powerless to have the military detain Mr. Marri any more than he could have ordered the military detentions of “the Unabomber or the perpetrators of the Oklahoma City bombing.”