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Bush wants indefinitely detentions on suspicion alone { June 11 2007 }

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Federal Court Rules in Favor of 'Enemy Combatant'

By Carol D. Leonnig
Washington Post Staff Writer
Monday, June 11, 2007; 3:02 PM

A federal appeals court today ruled that the U.S. government cannot indefinitely imprison a U.S. resident on suspicion alone, and ordered the military to either charge Ali Saleh Kahlah al-Marri with his alleged terrorist crimes in a civilian court or release him.

The opinion is a major blow to the Bush administration's assertion that as the president seeks to combat terrorism, he has exceptionally broad powers to detain without charges both foreign citizens abroad and those living legally in the United States. The government is expected to appeal the 2-1 decision handed down by a three-judge panel of the conservative U.S. Court of Appeals for the Fourth Circuit, which is in Richmond, Va.

The decision is a victory for civil libertarians and Marri, a citizen of Qatar who was a legal resident of the United States and studying in Peoria, Ill., when he was arrested in December 2001 as a "material witness." He was detained initially in civilian prisons, then transferred to a naval brig in Charleston, S.C. , where he has been confined for the past five years.

The government argued that Marri, who had met with al-Qaeda leader Osama bin Laden, was sent to the United States for a second wave of terrorist attacks.

The appeals panel said President Bush overstretched his authority by declaring Marri an "enemy combatant," because the Constitution protects both U.S. citizens and legal residents such as Marri from an unchecked military and from being detained without charges and a fair trial. The court rejected the administration's claim 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. "Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them 'enemy combatants.' "

Marri is the last of three U.S. residents who had been imprisoned at the Charleston brig.

Two others have since left the brig. Yaser Esam Hamdi -- a U.S. citizen captured on the battlefield in Afghanistan -- was held for almost three years by the military without charges. He was released and sent to his native Saudi Arabia after the Supreme Court ruled in 2004 that U.S. citizens must be provided with a trial by an impartial court. Jose Padilla, originally accused by the government of being a "dirty bomber," had also been held in the brig. But the government, just before a Supreme Court hearing on the case, chose to file much less substantial criminal charges against Padilla in November 2005 and transferred him to a civilian prison in Miami in January 2006.

"This is an important victory for the rights of all individuals in this country to be free from unchecked executive detention power," said Jonathan Hafetz, al-Marri's lawyer at the Brennan Center for Justice at New York University law school. "If the government seeks to detain someone, it has the burden of producing its evidence in a court of law."

Judge Henry Hudson, who dissented from the panel, said he agreed there was little precedent but said Bush did have the power to determine that al-Marri was an enemy combatant under Congress's Authorization to Use Military Force.

"Although al-Marri was not personally engaged in armed conflict with U.S. 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" that al-Marri was in the country to aid in hostile attacks on the United States.

Marri's brother, Jarallah al-Marri was captured in January 2002 and transported to military detention at United States Guantanamo Bay Naval Base in Cuba.

2007 The Washington Post Company

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