WASHINGTON, July 15, 2008 -- A federal appeals court ruled today that the Bush administration can keep the only so-called enemy combatant held within the United States, in the country, but said he has the right to challenge the government's designation of him.
President Bush declared Ali Saleh al-Marri an enemy combatant in June 2003, and he has been at the U.S. Navy brig in Charleston, S.C., ever since. The government claims he entered the country in 2001 to help carry out a second wave of terror attacks after Sept. 11, 2001.
Last June, the Richmond, Va.-based appeals court issued a 2-to-1 opinion in the case, rebuking the government for holding al-Marri illegally, and Bush for overstepping his constitutional authority in authorizing the detainment. The Justice Department appealed that ruling to the full nine-member appeals court.
The 5-to-4 ruling today sends the case back to a lower court, where a federal district judge will review the case evidence to determine if al-Marri can be held as an enemy combatant.
"While the decision rejects the administration's claim of unreviewable executive power, it effectively cripples the most basic right in the Constitution -- the right of all individuals in the United States to challenge the accusations against them at trial," said al-Marri's attorney, Jonathan Hafetz of New York University's Brennan Center for Justice in New York.
The judges wrote a total of seven opinions addressing the case, totaling 216 pages.
Judge William Byrd Traxler, one of the judges who voted to send the case back to the lower court, wrote that "the issues we decide today are significant for the reasons stated throughout all of the opinions. But, in my judgment, there are additional concerns implicated by our decision that may have gone without sufficient notice."
From the panel minority, Judge Diana Gribbon Motz wrote, "We do not question the president's wartime authority over enemy combatants, but absent suspension of the writ of habeas corpus, the Constitution simply does not provide the president the power to exercise military authority over civilians within the United States.
"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 empower 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,'" Motz wrote, echoing the words of her original June 2007 opinion in the case.
"The decision recognizes the president's authority to capture and detain al Qaeda agents who, like the 9-11 hijackers, come to this country to commit or facilitate war-like acts against American civilians," Justice Department spokesman Brian Roehrkasse said in a statement Tuesday.
Acknowledging that the ruling gives al-Marri grounds to challenge his detention, Roehrkasse added, "While the department believes that the district court properly concluded that Mr. al-Marri had already received all the process he was due, the government is studying the court's decision and will respond to Mr. al-Marri's contentions on remand."
One day before the 9/11 attacks, al-Marri and his family entered the United States so he could begin a master's degree program at Bradley University in Peoria, Ill. He had received a bachelor's degree from the same school in 1991, court documents say.
FBI agents originally arrested him in December 2001; officials at the bureau and at the Justice Department alleged that he repeatedly attempted to contact an al Qaeda leader suspected of financing the Sept. 11 attacks as part of his alleged involvement in the suspected second-wave attack.