Test of Bush's terror-fighting authority heads to higher court

The open-ended detention of an Arab student suspected of being an Al Qaeda sleeper agent is setting the stage for the next major showdown over the scope of President Bush's authority to fight terrorism on American soil.

Ali Saleh Kahlah al-Marri has been held in government custody for more than five years and has spent the last three and a half years in a South Carolina military prison under interrogation as a presidentially designated enemy combatant.

For 17 months of that time he was held incommunicado, with no ability to consult a lawyer, appear before a neutral judge to test the legality of his detention, or even tell his wife and five children he was alive.

Mr. Marri's lawyers say his confinement by military authorities rather than in the civilian justice system violates both US law and the Constitution.

Lawyers for the government disagree. They say the president is acting within his powers to protect the country from a second wave of terror attacks following 9/11.

Thursday, Marri's case goes to a three-judge panel of the Fourth Circuit Court of Appeals. Analysts say the dispute may ultimately wind up in the US Supreme Court with a potential landmark ruling on a key question: What rights does a noncitizen legal resident have when the government names him an enemy combatant?

The Fourth Circuit in Richmond, Va., is the same appeals court that upheld the detention as enemy combatants of US citizens Yaser Hamdi and Jose Padilla.

But the Marri case is different, his lawyers say. Mr. Hamdi was taken into custody in Afghanistan and Mr. Padilla was detained while attempting to reenter the US at Chicago's O'Hare International Airport. Both were said to have taken up arms against the US while overseas. In contrast, Marri was arrested in Peoria, Ill., where he was attending graduate school on a valid student visa.

Unlike other designated enemy combatants, Marri never directly participated in hostilities against the US, his lawyers say. Since he was never a combatant on a battlefield, he – as a civilian lawfully present in the US – cannot be detained by the military as an enemy combatant, they say.

Instead, he must be extended all the constitutional and other protections of the civilian court system, his lawyers say.

"The government's position in this case is stunning," says Jonathan Hafetz, a Marri lawyer at the Brennan Center for Justice at New York University. "If they are right, they can pick up any immigrant tomorrow in this country, lock them in a military jail, and the government would hold the keys to the courthouse." Mr. Hafetz adds, "The government could effectively disappear people."

The administration says in a global war on terror the battlefield can be anywhere, including Peoria. US Solicitor General Paul Clement says Marri associated with the military arm of Al Qaeda, a US enemy, and thus qualifies as an enemy combatant.

"He is a Qatari citizen who allied himself with Al-Qaeda, received funding and training from Al-Qaeda, and traveled to the United States on orders from Al-Qaeda to serve as a sleeper agent and facilitate further terrorist attacks against the United States from within," Mr. Clement writes in his brief to the court. He adds, "Enemy combatants do not earn immunity by crossing our borders to do us harm."

Before the three-judge panel considers such arguments, government lawyers will suggest that the appeals court lacks jurisdiction to take up Marri's case.

The Military Commissions Act of 2006 says in part that "No court, justice, or judge shall have jurisdiction to hear or consider any [legal] action against the United States ... related to any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of a noncitizen properly deemed an enemy combatant.

Marri's lawyers say the provision only applies to noncitizen enemy combatants detained outside US borders like those being held at the Guantánamo Bay, Cuba, naval base. If the court rules that the Military Commissions Act does apply to detainees held in the US, it would amount to an unconstitutional suspension of the writ of habeas corpus, they say.

The Bush administration argues that the new law divests jurisdiction in "all cases, without exception" in which a noncitizen enemy combatant is being held by the US. It applies regardless of the location of the detention, government lawyers say.

Hafetz says that approach threatens to blur the distinction between military and civilian jurisdiction established in a Civil War-era ruling by the Supreme Court.

Soldiers and combatants fall within the military sphere of courts martial, tribunals, and commissions, while civilians are governed by the civilian court system. "It is the essence of our society where civilian rule and civilian institutions are supreme and the military doesn't have the power to go in and arrest people in their homes and lock them in military jails," Hafetz says. "That is what separates a country that is democratic and committed to the rule of law from a country that is a police state."

In his brief, Solicitor General Clement says that after the 9/11 attacks, Congress authorized Mr. Bush to use all "necessary and appropriate force," including detention of enemy combatants, to "protect United States citizens both at home and abroad." The government reads the provision as authorizing detentions both at home and abroad.

In determining Marri is an enemy combatant, Bush concluded in part: "Mr. Marri represents a continuing, present, and grave danger to the national security of the United States."

A declassified affidavit prepared by a US intelligence official says that Marri attended an Al Qaeda training camp between 1996 and 1998. "Marri met personally with Osama Bin Laden and volunteered for a martyr mission or to do anything else that Al-Qaeda requested," the affidavit says.

Marri worked with two senior Al Qaeda leaders prior to his arrival in the US, Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and Mustafa Ahmed al-Hawsawi, the key moneyman of the 9/11 attacks, the affidavit says. In addition, Marri's younger brother is a detainee at Guantánamo Bay.

Al Qaeda asked Marri to enroll as a student and quietly explore ways to hack into bank records to disrupt the US financial system, the document says. He had also been trained in the use of poisons and was researching poisons similar to the hydrogen cyanide weapon used in a terror attack on the Japanese subway system by the group Aum Shinrikyo, the affidavit says.

Marri arrived in the US with his wife and five children one day before the 9/11 attacks. He had been given at least $13,000 by Al Qaeda, the affidavit says.

Marri's lawyers say much of the information in the affidavit is hearsay. They are asking for an opportunity to challenge the veracity of the allegations in court by investigating whether the intelligence information was obtained from Khalid Sheikh Mohammed and others through coercive interrogations or torture.

Hafetz says that even if everything the government says about Marri is true (and he stresses that he does not concede that it is true), the central point of his case is that Marri should be charged with a crime and prosecuted, not merely held indefinitely by the military based on an affidavit that has never endured the careful scrutiny of cross-examination in open court.

Earlier, a federal judge in South Carolina agreed with the government that Marri could be held as an enemy combatant based on hearsay evidence contained in an intelligence affidavit. The court said Marri was given an opportunity to present a case that he was wrongly accused, but that he "squandered" that opportunity. Short of making a stronger initial showing that he was innocent, Marri has no right to cross-examine government officials or more deeply investigate the government's allegations against him, the court ruled.

Marri is appealing that decision.