Court Strikes Down White House Enemy Combatant Policy

Ali Saleh al-Marri has been sitting in solitary confinement at a South Carolina Naval brig for four years, designated an enemy combatant by the Bush administration.

He's suspected of being an al Qaeda sleeper agent, who was preparing to launch a second-wave hit after the Sept. 11, 2001, terrorist attacks. But he has not had a trial nor been convicted of terrorism charges.

Monday, a federal appeals court issued a 2 to 1 opinion in the case, sending a strong message to the White House, saying al-Marri is being held illegally, and that President George W. Bush has overstepped his constitutional authority in authorizing the detainment.

"What the court is warning is that if you can do this to Mr. al-Marri, if you can pick up someone in Peoria, Ill., and hold them, potentially for life without charge, they can do it to you, they can do it to your mother," said al-Marri defense attorney Jonathan Hafetz.

'Disastrous Consequences for the Constitution'

Using piercing language throughout the opinion, the court wrote, "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.

"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,'" the opinion continued.

The opinion stated that the sanctioning of such presidential power "would have disastrous consequences for the Constitution — and the country."

'Into Dangerous Territory'

"The court today told the president that his unilateral attempt to wage the war on terror goes way beyond that which the Constitution allows," said former Justice Department attorney Michael Greenberger, now a professor at the University of Maryland's law school.

"He's not only crossed the borderline, he's gone well into dangerous territory," Greenberger said.

Post-Sept. 11 Policy

Since Sept. 11, the Bush administration has argued the president has the authority to detain terrorists who might pose an imminent threat.

"What happened on 9-11 has led the administration to believe that there are so many people who are so dangerous that you detain first and worry about prosecution later, if ever," said George Washington University law professor Stephen Saltzburg.

"Their point of view is that, people who are conspiring with al Qaeda, who may be sleepers in the U.S., pose a danger that can't adequately be dealt with through normal criminal law proceedings," he said.

The Justice Department released a statement after the ruling, saying, "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."

Attorney General 'Disappointed'

"I'm disappointed by the decision," said Attorney General Alberto Gonzales. He also noted that the Justice Department will "seek rehearing … before the entire circuit," the 13 active members of the 4th Circuit Court of Appeals, the court that issued Monday's opinion.

If the department loses out, it will likely appeal to the Supreme Court.

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