President Bush has the legal power to order the indefinite military detentions of civilians captured in the United States, the federal appeals court in Richmond, Va., ruled yesterday in a fractured 5-4 decision.
But a second, overlapping 5-4 majority of the court, the 4th U.S. Circuit Court of Appeals, ruled that Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., must be given an additional opportunity to challenge his detention in federal court there.
An earlier court proceeding, in which the government had presented only a sworn statement from a defense intelligence official, was inadequate, the second majority ruled.
The decision was a victory for the Bush administration, which had maintained that a 2001 congressional authorization to use military force after the Sept. 11 attacks granted the president the power to detain people living in the United States.
The court effectively reversed a divided three-judge panel of its own members, which ruled last year that the government lacked the power to detain civilians legally in the United States as enemy combatants. That panel ordered the government either to charge al-Marri or to release him. The case is likely to reach the Supreme Court.
How helpful the decision will be to be al-Marri remains to be seen, as the majority that granted him some relief was notably vague about what the new court proceeding should look like.
Al-Marri is the only person on the U.S. mainland known to be held as an enemy combatant. The government contended, in a declaration from the defense intelligence official, Jeffrey N. Rapp, that al-Marri was an al-Qaida sleeper agent sent to the United States to commit mass murder and disrupt the banking system.
Al-Marri was arrested Dec. 12, 2001, in Peoria, Ill., where he was living with his family and studying computer science. He was charged with credit-card fraud and lying to federal agents, and was on the verge of a trial on those charges when he was moved to military detention in 2003.
Brian Roehrkasse, a Justice Department spokesman, said the decision properly recognized "the president's authority to capture and detain al-Qaida agents who, like the 9/11 hijackers, come to this country to commit or facilitate warlike acts against American civilians."