WASHINGTON — 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 President Bush declared him 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 Bush's 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 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 pursuant to the Patriot Act. "But military detention of al-Marri must cease," she wrote.
