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Enemy combatant petitions for release { July 9 2003 } Original Source Link: (May no longer be active)
http://www.nytimes.com/2003/07/09/politics/09COMB.htmlhttp://www.nytimes.com/2003/07/09/politics/09COMB.html
July 9, 2003
Man Held as 'Combatant' Petitions for Release
By ERIC LICHTBLAU
WASHINGTON, July 8 — Lawyers for a Qatari student who was jailed by the military last month asked a federal court today to free him and challenged President Bush's authority to treat terrorism suspects as "enemy combatants."
Lawyers for the student, Ali Saleh Kahlah Al-Marri, argued in an appeal filed in federal court in Illinois that Mr. Bush's June 23 order declaring Mr. Marri to be an operative for Al Qaeda and an enemy combatant represented an act of "unbridled authority" that was illegal and unconstitutional.
Specialists in military law said that the legal challenge, coming just days after the Bush administration announced it was considering the use of military tribunals against six terrorism suspects, could present an important test of the executive branch's power to imprison suspects outside the reach of the civilian court system.
Mr. Marri, 37, had been scheduled to go on trial this month in Illinois on charges that he lied to the F.B.I. soon after the attacks of Sept. 11, 2001, about his travels and engaged in credit card fraud. But in a surprise decision last month, the Bush administration instead had him removed from the court system and jailed in a Navy brig in South Carolina as an enemy combatant. Officials said recent intelligence indicated that he had visited a Qaeda terrorist training camp in Afghanistan and that he was prepared to help "settle" operatives in the United States for further attacks after Sept. 11.
Bush administration officials declined to comment on the legal challenge today. "If we have any response, we'll respond in court," said Bryan Sierra, a Justice Department spokesman.
The petition filed today by Mr. Marri's lawyers, seeking a writ of habeas corpus to have him freed, will draw attention because his case represents the first time the Bush administration has used the enemy combatant designation to remove someone from the protections of the criminal courts. As an enemy combatant, Mr. Marri can be held indefinitely by the military and has no legal right to a lawyer unless the military decides to bring formal charges against him, officials said.
Lawrence S. Lustberg, a New Jersey lawyer who represents Mr. Marri, said in an interview that the administration had denied him any contact with his client since Mr. Marri was declared an enemy combatant.
Mr. Lustberg also said he believed that Mr. Bush declared Mr. Marri an enemy combatant in part because his client refused to cooperate with prosecutors in the criminal case against him and had been challenging the special custody restrictions that the Justice Department sought to impose on him.
The administration has also publicly labeled as enemy combatants two other terrorism suspects, Jose Padilla, suspected in a scheme to set off a radioactive device known as a dirty bomb, and Yaser Esam Hamdi, captured in fighting in Afghanistan. Both men are American citizens. An appellate court ruled earlier this year in Mr. Hamdi's case that a citizen captured on the battlefield could be held indefinitely as an enemy combatant.
Mr. Marri, a citizen of Qatar, came to the United States the day before the Sept. 11 attacks on a student visa, saying he planned to get a master's degree at Bradley University in Peoria, Ill. He received a bachelor's degree there in 1991.
Eugene Fidell, president of the National Institute of Military Justice and an authority on military law, said Mr. Marri's petition could hinge on how the courts interpreted the power granted to Mr. Bush, as commander in chief, to handle suspected enemies captured off the battlefield.
"The courts are never anxious to intervene in a case like this," and to second-guess the executive branch's authority over national security, Mr. Fidell said.
"But on the other hand, I think district judges do recognize that they are a bulwark and that the courthouse door is not lightly to be closed," he said. "The withdrawal of a pending prosecution from a district court is the kind of thing that rubs judges the wrong way."
Mr. Marri's petition argues that the authority to imprison people like him as enemy combatants goes beyond the military power granted to the president by Congress after the Sept. 11 attacks and represents an unprecedented "usurpation of power" by Mr. Bush.
"The president lacks constitutional or other legal authority to unilaterally designate an individual captured on American soil as an enemy combatant, to detain such person without charge or judicial review, to deny such person his due process and other constitutional rights," or to circumvent the courts, the filing said.
Deadline on Qaeda Deposition
ALEXANDRIA, Va., July 8 (AP) — A federal judge has given prosecutors until Monday to decide if they will comply with her ruling granting Zacarias Moussaoui, charged in the Sept. 11 attacks, access to a Qaeda prisoner.
The judge, Leonie M. Brinkema of Federal District Court, issued the order on Monday.
Mr. Moussaoui has claimed that Ramzi bin al-Shibh, an acknowledged member of Al Qaeda, would corroborate his assertion that he was not part of the plot behind the attacks.
In January, Judge Brinkema ruled that Mr. Moussaoui had a constitutional right to interview a witness potentially favorable to his defense.
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