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U.S. can't hold man as combatant, court says

The Baltimore Sun

WASHINGTON -- In a setback for the Bush administration, a federal appeals court ruled yesterday that a suspected al-Qaida 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 4th U.S. 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 since President Bush declared him an enemy combatant in June 2003.

Bush and other U.S. authorities have described al-Marri as an associate of al-Qaida operations chief Khalid Shaikh Mohammed who came to the United States on Sept. 10, 2001, to launch a terrorist attack and to help a "second wave" of sleeper agents bent on striking Americans.

Yesterday's ruling held that neither Bush's expanded post-Sept. 11 wartime powers nor the Military Commissions Act passed by Congress late last year eliminated al-Marri's constitutional habeas corpus rights to challenge the government's allegations against him in court.

In her 77-page ruling for the majority, Judge Diana Gribbon Motz said al-Marri might be guilty of serious crimes but that 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 President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls 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 under the Patriot Act. "But military detention of al-Marri must cease," she wrote.

In a dissenting opinion, Judge Henry E. Hudson said that "definitive precedent is admittedly sparse" but that the administration has the right to hold al-Marri as an enemy combatant.

Appeal planned

The Justice Department issued a statement saying it was "disappointed with today's divided decision" and that it would appeal the ruling to the entire appeals court.

Yesterday's decision 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, 41, is thought 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 on charges including credit card fraud and making false statements to the FBI. He pleaded not guilty but was designated an enemy combatant before the trial could begin.

Their client says he has had nothing to do with al-Qaida, Al-Marri's lawyers said.

Al-Marri was given the news of the ruling yesterday by Andrew J. Savage III, the private pro-bono attorney in Charleston, S.C., who has worked most closely with him.

"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."

Defense lawyers, human rights activists and some constitutional scholars hailed the ruling as one of the most significant since the Sept. 11, 2001, terrorist attacks.

'Landmark ruling'

"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, the litigation director of the Liberty & National Security Project at the New York University School of Law and the lead counsel for al-Marri.

Habeas corpus "is what stands between the United States and a police state," Hafetz said.

"You can't lock people up without charge," said Steven R. Shapiro, national 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 yesterday that "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."

Josh Meyer writes for the Los Angeles Times.

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