Court: Detainees can fight status

But US has right to jail suspected combatants

RICHMOND - The Bush administration has the authority to capture and detain suspected enemy combatants in this country but must give them an adequate opportunity to challenge their military detention, a closely divided federal appeals court ruled yesterday.

The decision by the US Court of Appeals for the 4th Circuit was a mixed bag - part victory and part setback - for both the administration and Ali al-Marri, the only enemy combatant seized and held on US soil. The administration has claimed broad power to detain enemy combatants suspected of terrorism.

In a 5-4 ruling, the court said the government had authority to hold Marri, a legal US resident, in military custody if charges against him are true. That decision vacated last year's 2-1 panel ruling ordering an end to Marri's military detention.

However, the court also split 5-4 on the question of whether Marri was denied due process. The majority said he was, and that additional hearings are necessary in US District Court to allow Marri to challenge whether he was properly designated an enemy combatant.

"At least the president's claim of unchecked, unreviewable detention power has been squarely rejected," said Marri's attorney, Jonathan Hafetz.

However, he said he probably will appeal to the US Supreme Court because he is troubled that the decision "gives the president the power to use the military to sweep up citizens and noncitizens in the US"

Brian Roehrkasse, spokesman for the US Justice Department, said he was pleased that the court affirmed the president's authority to capture and hold Al Qaeda operatives who enter this country.

"That authority is backed by the support of Congress and is a vital tool in protecting the nation against further terrorist attacks," Roehrkasse said.

He said federal prosecutors believe Marri "had already received all the process he was due," but were studying the appeals court's opinion and would respond to al-Marri's claims in district court.

Marri has been held in a Navy brig in Charleston, S.C., since June 2003. The native of Qatar was arrested in December 2001 at his home in Peoria, Ill., where he moved with his wife and five children a day before 9/11 to study for a master's degree at Bradley University.

The government says federal agents found evidence that Marri, who was charged with credit card fraud, had links to Al Qaeda terrorists and was a national security threat. Authorities shifted Marri's case from the criminal system and moved him to indefinite military detention.

Hafetz has argued that Marri could not be held in military custody because he was not captured on a battlefield. The Justice Department says Congress gave the administration authority to seize and detain anyone affiliated with Al Qaeda, regardless of where they are captured.

Seven of the nine appeals court judges wrote separate opinions in the case. Judge William B. Traxler was the swing vote, joining four colleagues who supported the detention but also siding with four others who said Marri was entitled to more due process to challenge his accusers.

Traxler, who was appointed to the court by President Clinton, said Marri's detention was proper because "the war that Al Qaeda wages here and abroad may be viewed as unconventional, but it is a war nonetheless and one initially declared by our enemy."

However, he said Marri's case is different from that of another enemy combatant, Yaser Hamdi, a US citizen captured on the battlefield in Afghanistan. Marri is "entitled to the normal due process protections available to all within this country," he wrote.