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Al-Marri can challenge his accusers, 4th Circuit says

The Bush administration has not given the only enemy combatant held on U.S. soil an adequate opportunity to challenge his detention, a closely divided federal appeals court ruled Tuesday.

In a 5-4 ruling, the 4th U.S. Circuit Court of Appeals said the administration has the authority to detain al-Marri if the allegations against him are true. However, the court in another 5-4 decision said al-Marri must be allowed to challenge his accusers.

The full appeals court’s ruling stops short of last year’s 2-1 panel decision ordering an end to al-Marri’s military detention. But it’s still a setback for the administration, which has claimed broad power to hold enemy combatants suspected of terrorism.

“At least the president’s claim of unchecked, unreviewable detention power has been squarely rejected,” said al-Marri’s attorney, Jonathan Hafetz.

Hafetz said he was still reviewing the 220-page opinion and was unsure about his next step in trying to win al-Marri’s release.
Al-Marri has been held in a Navy brig in Charleston, S.C., since June 2003. The native of Qatar was arrested in December 2001 at his home in Peoria, Ill., where he moved with his wife and five children a day before 9/11 to study for a master’s degree at Bradley University.

The government says federal agents found evidence that al-Marri, who was charged with credit card fraud, had links to al-Qaida terrorists and was a national security threat. Authorities shifted al-Marri’s case from the criminal system and moved him to indefinite military detention.

Hafetz has argued that al-Marri could not be held in military custody because he was not captured on a battlefield. The Justice Department claims Congress gave the administration authority to seize and detain anyone affiliated with al-Qaida, regardless of where they are captured.

The appeals ruling comes a month after the U.S. Supreme Court ruled that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.

In a 5-4 ruling, the nation’s highest court also noted that the system the administration put in place to classify suspects as enemy combatants and review those decisions is inadequate.

The 4th Circuit ruling illustrated that the court’s reputation as the most reliably conservative of the federal appellate courts may no longer be accurate as some of its more conservative members have left the court of taken senior status.

Until the recent appointment of former Supreme Court of Virginia Justice G. Steven Agee, the court was evenly split between Republican and Democratic appointees. The votes in the al-Marri case split along party lines with Judge William B. Traxler Jr., a Democratic appointee, casting the swing votes.

Agee and Judge Dennis W. Shedd, a Republican appointee, did not participate in the case.

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