Court strikes blow to Bush detainee strategy

President Bush overstepped his authority when he ordered the indefinite military detention of an Arab computer-science student from Qatar on suspicion that he was an Al Qaeda sleeper agent.

In a stinging rebuke to the Bush administration's tactics in the war on terror, a panel of the Fourth US Circuit Court of Appeals on Monday ordered the government to release Ali Saleh al-Marri after being held four years in a military brig.

"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," writes US Circuit Judge Diana Gribbon Motz in the 2-to-1 decision.

"For a court to uphold a claim to such extraordinary power ... would effectively undermine all of the freedoms guaranteed by the Constitution," Judge Motz writes. "We refuse to recognize a claim to power that would so alter the constitutional foundations of our republic."

Motz was joined by Judge Roger Gregory in the majority opinion.

Mr. Marri's lawyers were pleased with the outcome.

"This decision is a landmark victory for the rule of law," says Jonathan Hafetz, a lawyer at the Brennan Center for Justice at New York University's law school, who argued the case for Marri. "It affirms the right of all individuals in this country to habeas corpus and rejects the administration's position that it can lock up people in the US, potentially for life, without charge and without trial."

In a dissent, US District Judge Henry Hudson says that in his view Mr. Bush was authorized by Congress to order the military detention of civilians deemed to be enemy combatants.

Without such broad authorization, the only way to counter Al Qaeda sleeper agents plotting attacks inside the US would be to prosecute them as criminals, he writes.

Under the 2001 Authorization for Use of Military Force, Congress empowered the president to "use all necessary and appropriate force against those ... organizations, or persons" linked to Al Qaeda to prevent future attacks, Judge Hudson says.

"This broad language would certainly seem to embrace surreptitious Al Qaeda agents operating within the continental United States."

Marri, who denied he's an Al Qaeda agent, has been held since June 2003 as an enemy combatant at the Consolidated Naval Brig at Charleston, S.C.

He arrived in the US on a student visa with his wife and five children and had reportedly planned to attend Bradley University in Peoria, Ill. Instead, following the 9/11 attacks, Marri was arrested and interrogated as a suspected Al Qaeda sleeper agent sent to the US to launch a computer attack on American financial markets.

After several efforts to prosecute him, Bush designated Marri an enemy combatant, and he was transferred to the Charleston brig. Lawyers working on Marri's behalf filed a habeas corpus petition, challenging the legality of his detention.

It is that suit that prompted the Fourth Circuit ruling on Monday.

In ruling against the government, the appeals court rejected assertions that Congress had authorized the open-ended detention of civilian, noncitizens who are legally present in the US. The panel also rejected the arguments that Bush's actions were authorized by his inherent powers as the nation's commander in chief.

In rejecting the administration's broad reading of the Authorization for Use of Military Force, the Fourth Circuit judges said that a different law, the USA Patriot Act, authorized the attorney general to detain terror suspects under certain extraordinary circumstances – but only for a limited period. The court said if Congress wanted to grant similar – but much broader – powers to Bush, it could have done so by speaking clearly in legislation.

In bolstering her ruling, Motz went back to the US Civil War and a major landmark in constitutional history for the proposition that civilians in the US may not be brought under military jurisdiction absent a suspension of the writ of habeas corpus.

In embracing the civil war precedent, the majority judges rejected the Bush administration's view that the war on terror is a new kind of warfare without a clearly distinguished battlefield.

"We do not question the president's war-time authority over enemy combatants; but absent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the president the power to exercise military authority over civilians within the United States," Motz writes.

In sending the case back to the district court judge, the panel instructed the judge to issue a writ of habeas corpus directing the secretary of Defense to release Marri "within a reasonable period of time."

The decision adds, "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 connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act." Motz adds, "But military detention of al-Marri must cease."