Court Strikes Down White House Enemy Combatant Policy

June 11, 2007 — -- 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.

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."

"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.