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US citizens can be declared enemy combatants { February 1 2007 }

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Bush’s war powers further scrutinised
By Demetri Sevastopulo in Richmond, Virginia

Published: February 1 2007 20:55 | Last updated: February 1 2007 20:55

The battle to define presidential powers in the “war on terror” came under renewed scrutiny on Thursday when a foreign prisoner held in the US on suspicion of being an al-Qaeda “sleeper agent” asked a court to declare his detention unconstitutional.

Ali Saleh Kahlah al-Marri, a Qatari citizen studying computer science in the US, was arrested in Illinois in late 2001 in connection with the investigation into the September 11 attacks. He was slated for a criminal trial in 2003 on charges including credit card fraud.

Just weeks before the trial, however, President George W. Bush classified Mr Marri as an unlawful “enemy combatant” in the “war on terror”. He was removed from the criminal justice system and transferred to a prison in South Carolina, where he has remained without direct access to his family. The administration has designated hundreds of detainees at Guantánamo Bay as “enemy combatants”.

But lawyers for Mr Marri argued in a federal appeals court in Virginia on Thursday that Mr Bush did not have the authority to declare legal US residents as enemy combatants. “The president cannot militarise the case of a man in Peoria [Illinois] with the stroke of a pen,” said Jonathan Hafetz, a New York University lawyer representing Mr Marri.

The Justice Department argued that Congress gave Mr Bush the authority to declare Mr Marri an enemy combatant when it gave him the ability to use force to prosecute the “war on terror” after September 11.

Critics say Congress intended the president to have the authority to classify only prisoners captured on the battlefield, not legal US residents or US citizens, as enemy combatants.

“If the government prevails, any one of the 11.6m legal permanent residents in the US could – on the president’s held indefinitely as an ‘unlawful enemy combatant’ with no right to challenge his or her imprisonment in court,” said Human Rights Watch.

In court on Thursday, the Justice Department argued the battlefield in the “war on terror” included the US. That view seemed to receive support from one judge on the three-member panel but another appeared to question the administration’s argument, saying while Congress could have given Mr Bush the ability to declare legal residents and citizens as “enemy combatants”, it was unclear it had done so.

But Congress may again tackle the debate over habeas, which could have implications for the case of Mr al-Marri and the several hundred detainees still imprisoned at Guantánamo.

Senators Patrick Leahy and Arlen Specter, the top Democrat and Republican on the Senate judiciary committee, last week said they would work to reinstate the right of habeas corpus for all detainees.

“The great writ of habeas corpus was done horrible damage by the Congress in a law the president signed last year,” Sen Leahy told Alberto Gonzales, the US attorney-general last week.

“I just want to put everybody on notice: as chairman of this committee, I will do everything possible to restore all the rights under the write of habeas corpus that were there before we passed the [MCA] legislation,” he said.

Copyright The Financial Times Limited 2007

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