Court says Bush lacks authority to detain indefinitely

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President Bush does not have the legal authority to order the U.S. military to hold indefinitely a Qatari national and suspected al Qaeda operative as an “enemy combatant,” a federal appeals court panel said yesterday.

In a major setback for the Bush administration, the three-member 4th Circuit Court of Appeals panel — in a 2-1 vote — said Ali Saleh Kahlah al-Marri cannot be held as a military detainee and is entitled to habeas corpus protections that give him the right to challenge his detainment in a U.S. civilian court.

“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,” said Judge Diana Gribbon Motz in the majority opinion.

“We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic,” said Judge Motz, who was named to the bench in 1994 by President Clinton.

She was joined by Judge Roger L. Gregory, who initially was named to the bench through a recess appointment by Mr. Clinton in December 2000 and renominated by Mr. Bush in May 2001. He was the first appellate judge confirmed during the Bush presidency and the first black judge to serve on the 4th Circuit.

The dissenting vote was cast by Judge Henry E. Hudson, who said Mr. Bush had the authority to detain al-Marri as an enemy combatant since he is “the type of stealth warrior used by al Qaeda to perpetrate terrorist acts against the United States.”

Judge Hudson, U.S. attorney in Virginia during the administrations of President Reagan and the first President Bush, was named to the bench in 2002 by Mr. Bush.

Judge Motz ordered the trial judge in the case to issue a writ of habeas corpus directing the Pentagon “within a reasonable period of time” to either charge al-Marri in a civilian court, order him deported, hold him as a material witness or release him. But, she said, the military detention of al-Marri “must cease.”

“This is a huge victory,” said Jonathan Hafetz, litigation director of the Brennan Center’s Liberty & National Security Project and the lead counsel in the case.

“The decision protects legal residents and citizens from secret detention. In the American tradition, the court found that the president cannot expand his power, even in times of terror, above and beyond the other co-equal branches of the government,” he said.

Al-Marri was being held on charges of lying to the FBI in an investigation into the September 11 attacks when he was designated by Mr. Bush on June 23, 2003, as an “enemy combatant.”

Al-Marri was named in a grand jury indictment handed up in Peoria, Ill., charged with making false statements to the FBI and of credit-card fraud. His designation as an enemy combatant followed prosecutors” dropping of the pending criminal charges. He was identified in the days shortly after September 11 as someone with ties to an al Qaeda operative involved in planning the attacks.

A search of his apartment netted an almanac with major U.S. dams, reservoirs, waterways and railroads marked. Agents seized an Arabic prayer discussing the defeat of “villainous Christians and Jews,” and victory for Muslims in Afghanistan, Kashmir and Chechnya, as well as in the Palestinian struggle, authorities said.

Authorities said al-Marri attended the same al-Farooq training camp in Afghanistan as other would-be terrorists and met with Osama bin Laden. They said al-Marri was trained in the use of poisons but had not been sent to the United States to mount an attack. He is suspected of offering himself as a martyr for al Qaeda attacks against U.S. targets, authorities said.

The designation of a terror suspect as an enemy combatant was first suggested by former Attorney General William Barr under the first President Bush as a way to bring to trial the terrorists responsible for the 1988 bombing of Pan Am 103 over Lockerbie, Scotland. It was not used at the time.

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