Al-Marri: Court Takes Second Look at Enemy Combatant Case

New York Times
November 1, 2007

RICHMOND, Va., Oct. 31 — It seemed like a foregone conclusion that the full United States Court of Appeals for the Fourth Circuit would be receptive to the Bush administration’s contention that it has the authority to detain people it calls enemy combatants.

The court’s conservative reputation is well known, and in August it decided to rehear the case in which a three-judge appeals panel rejected aspects of the administration’s position.

But, based on the pointed, practical and frequently passionate questioning here on Wednesday in the case of Ali al-Marri, the judges of the Fourth Circuit are divided and troubled, and it was not clear which way the majority was leaning.

Mr. Marri is the only person on the American mainland being held as an enemy combatant, at the Navy brig in Charleston, S.C. A citizen of Qatar legally in the United States, he was arrested in December 2001 in Peoria, Ill., where he was living with his family and studying computer science at Bradley University. The government contends that he is a sleeper agent for Al Qaeda.

The central question before the nine judges hearing the case on Wednesday was whether the executive branch may capture people in the United States and subject them to indefinite military detention without charges.

In 2004, the Supreme Court ruled that Congress had granted the president power to detain at least those enemy combatants captured on the battlefield in Afghanistan, even if they are American citizens, for the duration of hostilities there. Based on that decision, the Fourth Circuit in 2005 upheld the detention of Jose Padilla, an American arrested at a Chicago airport. Although Mr. Padilla was said to have ties to Al Qaeda, the Fourth Circuit decision largely turned on his own activities on the battlefield in Afghanistan.

Mr. Padilla was later transferred to the criminal justice system and tried on charges related to terrorism. He was convicted in August. Mr. Marri traveled the same road in the opposite direction. He was on the verge of a trial on credit card fraud and other charges when he was moved to military detention in 2003.

The appeals panel in Mr. Marri’s case ruled, 2 to 1, in June that the powers Congress granted to the president in September 2001 extended only to the detention of people who had taken up arms against the United States as part of the armed forces of an enemy nation. That would include people who fought alongside the Taliban but not most members of Al Qaeda.

At the argument on Wednesday, Judge J. Harvie Wilkinson III called that distinction curious, saying, “I don’t understand how the authority to use military force which relates specifically to the Sept. 11 attacks can be held not to apply to the people who attacked us.”

He added, in extended remarks, that civil liberties groups had stirred up needless anxiety about the president’s detention powers. “We’re not talking about an indiscriminate roundup,” he said. “We’re talking about two people” — Mr. Marri and Mr. Padilla — “in six years with undisputed ties to Al Qaeda.”

Judge Roger L. Gregory, who joined the majority opinion in the panel decision, responded that the question was one of constitutional principle.

Gregory G. Garre, arguing for the government, faced practical questions that suggested concern among the judges about his position. “How long can you keep this man in custody?” Judge M. Blane Michael asked.

“It could go on for a long time,” Mr. Garre replied, adding that it depended on how long the United States was at war with Al Qaeda.

“It looks like a lifetime,” Judge Michael said.

Judge William B. Traxler Jr. asked whether people could be detained and held in secret. “What kind of notice is required to the public or his family?” Judge Traxler asked.

Mr. Marri has not seen or spoken to his wife and five children in more than four years.

Mr. Garre responded that Mr. Marri, who was held incommunicado for his first 16 months in the brig, was eventually given access to lawyers and a court hearing in which he was given the opportunity to rebut the government’s assertions, an opportunity Mr. Garre said Mr. Marri had “squandered.” (Mr. Marri’s lawyers say it ought to be the government’s burden to prove its accusations.)

Judge Traxler pressed Mr. Garre. “How is a person who is held incommunicado to challenge these things?” he asked. Mr. Garre offered no direct response.

Mr. Marri’s lawyer, Jonathan L. Hafetz of the Brennan Center for Justice at New York University, said the government had been a moving target in terrorism cases. “This is not a game,” Mr. Hafetz said, referring to the exchanges with Mr. Garre. “This is a man’s life. Mr. al-Marri is entitled to know what the rules are.”

One of the 10 active judges on the court, Judge Dennis W. Shedd, recused himself, giving no reason. A 5-to-5 tie would have automatically affirmed the trial judge’s dismissal of Mr. Marri’s case. Now five votes are needed for either side to win.