Fourth Circuit rules against Bush admin in enemy combatant case

The NYT gleefully reports that the Fourth Circuit has decided against the Bush administration in a case about a Qatar man accused of being a sleeper agent for Al Qaeda, who was declared an enemy combatant here in the US:

In a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism, a federal appeals court ordered the Pentagon to release a man being held as an enemy combatant.

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians,” Judge Diana Gribbon Motz wrote, “even if the President calls them Γ’β‚¬Λœenemy combatants,’ would have disastrous consequences for the Constitution β€” and the country.”

“We refuse to recognize a claim to power” Judge Motz added, “that would so alter the constitutional foundations of our Republic.”

The ruling was handed down by a divided three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., in the case of Ali al-Marri, a citizen of Qatar and the only person on the American mainland known to be held as an enemy combatant.

Mr. Marri, whom the government calls a sleeper agent for Al Qaeda, was arrested on Dec. 12, 2001, in Peoria, Ill., where he was living with his family and studying computer science at Bradley University.

He has been held for the last four years at the Navy Brig in Charleston, S.C.

Judge Motz wrote that Mr. Marri may well be guilty of serious crimes. But she said that the government cannot circumvent the civilian criminal justice system through military detention.

Mr. Marri was charged with credit-card fraud and lying to federal agents after his arrest in 2001, and he was on the verge of a trial on those charges when he was moved into military detention in 2003.

The government contended, in a partly declassified declaration from a senior defense intelligence official, Jeffrey N. Rapp, that Mr. Marri was a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.

Lyle Denniston at SCOTUSblog has the spin-free version:

The Fourth Circuit Court, in a 2-1 ruling on Monday, declared that President Bush did not have the authority to order the military to seize and indefinitely detain a civilian who was taken from his home in Peoria, Ill. For the Qatar national who has been held by the military since 2003, the Court said, “military detention…must cease.” The ruling barred military detention of any civilian captured inside the U.S., but the Court said it was limiting its decision to those who are in the country legally and have established connections here.

“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,” the Court said.

The government has the right to ask the full Fourth Circuit bench to reconsider the case, or to take it directly to the Supreme Court. The Fourth Circuit has generally been quite favorable to the government in war-on-terrorism cases. It is unclear whether the Supreme Court would hear the case on a government appeal, because the decision technically does not conflict with a recent D.C. Circuit Court ruling denying rights to foreign nationals captured abroad and held at Guantanamo Bay, Cuba, outside U.S. territory.


The panel concluded that it would grant al-Marri habeas relief, though not immediate release. It said the government had accused him — though not with formal charges — of “grave crimes.” The case was returned to a federal judge in South Carolina with instructions to order the Pentagon to release al-Marri from military custody “within a reasonable period of time to be set by the District Court. The Government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act. But military detention of al-Marri must cease.”

It’s a lengthy post, but well-worth reading to understand more about the case and why certain liberals are cheering about today.

What’s next? Orin Kerr at The Volokh Conspiracy speculates:

My prediction: I tend to doubt this decision will stand. My very tentative guess is that either the en banc Fourth Circuit or the Supreme Court will reverse, holding that the AUMF is broad enough to authorize an Al-Qaeda suspect like Al-Marri and therefore the detention is authorized by statute.

Stay tuned …

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