Federal appeals court rules against enemy combatant policy

WASHINGTON -- A federal appeals court ruled yesterday that President Bush cannot indefinitely imprison a US resident on suspicion alone, ordering the government either to charge Qatari national Ali Saleh Kahlah al-Marri with terrorist crimes in a civilian court or release him.

The opinion is a blow to the Bush administration's assertion that the president has exceptionally broad powers to combat terrorism, including the authority to detain without charges foreign citizens living legally in the United States.

It is the first time a court has said that Marri cannot be held forever without facing formal charges, but it is a symbolic victory -- Marri will continue his detention in a naval brig in Charleston, S.C. The government said that it was disappointed by the 2-to-1 decision, handed down by a panel of the US Court of Appeals for the Fourth Circuit, and that it will appeal to the full court.

The appeals panel ruled that Bush had overreached his authority and that the Constitution protects US citizens and legal residents such as Marri from unchecked military power. It also rejected the administration's contention that it was not relevant that Marri was arrested in the United States and was living here legally on a student visa.

"The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention," the panel found.

Justice Department spokesman Dean Boyd said that Marri posed a significant threat, and that imprisoning enemy fighters is necessary to stop future attacks.

"The president has made clear that he intends to use all available tools at his disposal to protect Americans from further Al Qaeda attack, including the capture and detention of Al Qaeda agents who enter our borders," Boyd said.

US District Judge Henry E. Hudson, a Bush appointee, dissented from the opinion. Hudson contended that Bush has the power to detain enemy combatants under Congress's authorization to use military force.

"Although al-Marri was not personally engaged in armed conflict with US forces, he is the type of stealth warrior used by Al Qaeda to perpetrate terrorist acts against the United States," Hudson wrote. "There is little doubt," the judge maintained, that Marri was in the country to aid in hostile attacks on the United States.

Marri's case is one of several involving the rights of suspected enemy combatants that have reached the appellate level of the federal courts and are likely to be decided by the Supreme Court.

Marri was a legal resident of the United States and a university student in Peoria, Ill., when he was arrested in December 2001 as a "material witness." The government said that Marri -- who was identified as part of an Al Qaeda sleeper cell by Khalid Sheik Mohammed, architect of the Sept. 11, 2001, attacks -- came to the United States to prepare for a second wave of terrorist strikes. Marri was initially held in prisons in Illinois and New York, then was deemed an enemy combatant by Bush and transferred to the brig, where he has been held for the past four years.

Marri is the last of three US citizens or residents in the Charleston brig.