Federal Court Divided over Power of Executive Branch to Detain Enemy Combatants

By:  Lindsey Brady
Impunity Watch Reporter, North America

RICHMOND, VA-In December 2001, shortly after the attacks on the World Trade Center, Ali al-Marri was arrested for criminal credit card fraud and then detained by the federal government for being a suspected sleeper agent with connections to Al Qaeda.  Even though he was not charged for anything requiring detention in the military brig in Charleston, South Carolina, the Bush administration alleged that they had the right to detain him as a suspected enemy combatant.  The New York Times says that Marri is the only person being held on American soil as an enemy combatant.  The Christian Science Monitor claimed that federal agents suspected Marri had come to the United States to aid in a second terrorist attack on American soil.  Allegedly, says the Christian Science Monitor, the federal government's evidence is based on coercive interrogations conducted overseas and in U.S. criminal courts these kinds of statements are not considered reliable evidence.  For this reason it is assumed that Marri was declared an enemy combatant to get around the trouble of trying to convict him through the American criminal justice system.

Now, it is a question of whether the executive branch of the U.S. federal government had the right to capture persons in the United States and detain them for indefinite terms.  Marri was in the United States legally as a computer science student at Bradley University.  According to the New York Times, the Supreme Court ruled that Congress could grant the power to the president to detain enemy combatants captured in Afghanistan, even if they are American citizens who are fighting against the United States while there are still hostilities there.  An appeals panel applied this ruling to their decision in June of this year that Marri could have only been detained if he was part of the armed forces of an enemy nation.  Now the 4th Circuit U.S. Court of Appeals has to consider what the executive branch's power really is.

The New York Times pointed out that the, now split 4th Circuit Court, has traditionally been extremely conservative and supportive of the Bush administration's tactics in fighting the war on terror. The Miami Herald quoted Marri's lawyer, Jonathan Hafetz, as arguing the court should uphold the appeals panel decision because "to rule otherwise is to sanction a power the president never had and never was meant to have...this is a man's life...Mr. al-Marri is entitled to know what the rules are."  Judge Paul V. Niemeyer challenged this argument by saying to uphold the prior decision would mean that "25 or 30 terrorists could sneak into the United States and the military would not be able to stop them."  Judge J. Harvie Wilkensen III, supported Niemeyer by saying he didn't understand how the court could hold the authority for the military to use force against those involved in the September 11th attacks can not be used against a suspected Al Qaeda agent.  Hafetz, along with his associates from the Brennan Center for Justice at New York University said his client had been held without the means or right to communicate for the first 16 months, not event o talk to a lawyer.  So when Gregory G. Garre, who was arguing for the government, claimed (according to the New York Times) that Marri had "squandered his opportunity to rebut government assertions," Hafetz counterclaimed that the government should bear the burden of proving Marri's guilt and it is wrong to assume Marri should have refuted the assertions when he was made incommunicado for over a year.

For more information, please see:

New York Times - Court Takes Second Look at Enemy Combatant Case - 1 November 2007

Miami Herald - Appeals Court hears Enemy Combatant Case - 31 October 2007

Christian Science Monitor - Appeals Court Weighs Who's an Enemy Combatant - 31 October 2007

Human Rights First - In the Courts:  Ali Saleh Kahlah al-Marri, Qatari student - 31 October 2007