Court rules US resident terror suspect can't be held indefinitely

In a limited victory against those who would twist the law for their own ends (read, the Bush administration), a US court of appeals ruled that a terrorist suspect who is also a US resident cannot be held indefinitely without charge, and that he muist be tried in civilian court.

I debated whether to label this under prisoner of conscience. I did not, because there's no evidence whether al-Marri is guilty or not. I filed it under human rights instead. As I did so, I felt a great sense of sadness.





By Andrew Zajac
Washington Bureau
Published June 12, 2007


WASHINGTON -- In a sharp rebuke to the Bush administration's detention policies, a federal appeals court ruled Monday that the government cannot continue to hold a U.S. resident -- a suspected Al Qaeda sleeper agent arrested in Peoria in late 2001 -- without filing charges against him.

The 2-1 decision by a 4th U.S. Circuit Court of Appeals panel in Richmond, Va., means the government must release Ali Saleh Kahlah al-Marri, a legal U.S. resident, from military custody and either charge him in the criminal justice system, deport him or free him.


Atty. Gen. Alberto Gonzales said he was disappointed by the ruling and that the Justice Department would appeal the decision to the full 12-member circuit.

Al-Marri's lawyer, Jonathan Hafetz, of the Brennan Center for Justice in New York, hailed the decision as "a vindication of basic American values."

"They should charge him just like they did Jose Padilla," said Hafetz, referring to the one-time Chicago gang member and U.S. citizen who was held without charges for 31/2 years before going on trial in Miami earlier this year on terror-related charges.

Al-Marri, 41, who has been held at the U.S. Naval Brig in Charleston, S.C., since June 2003, is the only prisoner designated an enemy combatant still detained in the U.S. He has denied being a terrorist or committing any crimes.

The court ruled that al-Marri, a native of Qatar, does not come under the jurisdiction of the Military Commissions Act, which was devised in 2006 by Congress to deal with alleged terrorists outside of the civilian justice system, because he was never given a hearing to determine if he is an "unlawful enemy combatant" subject to the new law.

Furthermore, as a legal resident of the U.S. at the time of his arrest, al-Marri cannot be held in open-ended detention as an alleged terrorist, the court said.

"The president's constitutional powers do not allow him to order the military to seize and detain indefinitely al-Marri without criminal process any more than they permit the president to order the military to seize and detain, without criminal process, other terrorists within the United States, like the Unabomber or the perpetrators of the Oklahoma City bombing," Judge Diana Gribbon Motz wrote in an opinion joined by Judge Roger Gregory.

In his dissent, Judge Henry Hudson, a district court judge sitting by assignment, wrote that both the authorization to use force passed by Congress after the Sept. 11 attacks and the president's inherent constitutional powers give President Bush the authority to keep al-Marri outside the civilian legal system.

The decision is the latest defeat for the government in its struggle to detain and try alleged terrorists beyond the reach of the federal courts.

The Supreme Court has ruled three times that accused terrorists have at least limited legal rights.

The Justice Department has argued that national security needs sometimes have to trump the transparency of criminal trials and have ceded authority over terror suspects only grudgingly.

In the case of Padilla, for example, the government insisted for years that he was part of a plot to set off either a crude radioactive dirty bomb or to blow up apartment buildings by tampering with gas lines.

But in November 2005, shortly before a Supreme Court deadline for filings on the president's authority to continue holding Padilla without charge, he was added to an ongoing terror case in Miami that had nothing to do with the alleged dirty bomb or gas plots.

The government has sought a free hand with al-Marri but in February 2006 was pressured by a federal magistrate in South Carolina to allow the detainee to see the evidence against him so that he could rebut it, although a federal judge later ruled against al-Marri, setting up the appeal that resulted in Monday's decision.

Motz's opinion pushed back against the administration claim of expansive power over al-Marri and other detainees.

"For a court to uphold a claim to such extraordinary power ... would effectively undermine all of the freedoms guaranteed by the constitution," Motz wrote.

Eugene Fidell, president of the National Institute of Military Justice, said, "This is a very significant setback for the government." He said Motz's 77-page decision is carefully crafted and that judicial patience with the Bush administration's detention policies may be wearing thin, even in the 4th Circuit, a venue favored for terror cases by the Bush administration because of its traditionally conservative opinions.

"I would not leap to any conclusions about what the full court of appeals would do," Fidell said.

Fidell said there's an urgency in finding a legally acceptable process for trying accused terrorists. "It's not simply does al-Marri go on trial. It has to do with the health of the constitutional process," Fidell said.

Al-Marri arrived in the U.S. with his wife and five children on Sept. 10, 2001, purportedly to study engineering at Bradley University.

On Dec. 12, 2001, the FBI arrested al-Marri as a material witness in the Sept. 11 attacks and later charged him with fraud and lying to investigators.

Although not charged with a terrorism offense, al-Marri was tied by authorities to Al Qaeda because he allegedly placed calls to a phone number in the United Arab Emirates linked to one of the paymasters for the Sept. 11 operation.

His computer contained more than 1,000 apparent credit card numbers and instructions on making hydrogen cyanide.

In June 2003, a month before al-Marri was slated for trial, Bush declared him an enemy combatant, and he was moved from a federal jail in Peoria to the naval brig.

According to a government filing, al-Marri was picked as an Al Qaeda sleeper agent by Sept. 11 plot mastermind Khalid Shaikh Mohammed because as a married man with children, he was less likely to draw attention. Investigators say al-Marri was to explore ways of disrupting the U.S. financial system.