Court rejects terror policy

In a judicial broadside, a U.S. appeals court Monday ordered the federal government to release al-Qaida suspect Ali Saleh al-Marri from military custody, saying a key Bush administration anti-terrorism policy undermines "all of the freedoms guaranteed by the Constitution."

Al-Marri has been held without charges in the Navy's brig in Hanahan for four years.

The 2-1 decision by the U.S. 4th Circuit of Appeals contains some of the strongest language yet against the administration's policy of designating terrorism suspects "enemy combatants."

The panel found that the 2006 Military Commissions Act, which prohibits enemy combatants from challenging the basis for their imprisonment in U.S. courts, does not apply to a person living legally in the United States. The judges also doubted the legality of classifying someone as an enemy combatant who was not caught on the battlefield or was not carrying arms.

"It's a very good day for the American people," said Andy Savage, a Charleston lawyer and member of al-Marri's legal team. "But it's just another stop on the way to the Supreme Court."

The 4th Circuit, widely regarded as the nation's most conservative appellate court, said the government still can deport al-Marri or formally charge him.

"This does not mean that al-Marri must be set free," the court said. "Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention."

In a statement, the Justice Department said officials were "disappointed with today's divided decision and intend to seek reconsideration before the entire court of appeals." The statement reiterated the government's allegations that al-Marri trained in an al-Qaida camp in Afghanistan and met with Khalid Sheik

Muhammed, mastermind of the 9/11 attacks.

"The president has made clear that he intends to use all available tools at his disposal to protect Americans from further al Qaida attack," the statement said.

Federal agents arrested al-Marri in Peoria, Ill., three months after the 9/11 attacks and indicted him on charges of credit card fraud and conspiracy.

In 2003, shortly before his case was to go to trial, prosecutors suddenly dropped the charges. President Bush designated al-Marri an enemy combatant in a one-page declaration, and the military secretly whisked him to the Charleston Naval Consolidated Brig, where he's been held in isolation since.

Had al-Marri been tried and convicted in a court of law, he might have become one of the Bush administration's anti-terrorism success stories, Savage said.

"If he is a real threat to the American public, he should be prosecuted and the government and police recognized for the hard work they've done," Savage said. "What the American public won't approve is when the government says 'gotcha' and locks you up indefinitely and deprives you of all your constitutional rights."

Monday's ruling had nothing to do with guilt or innocence. Rather, it dealt with the concept of habeas corpus, the right of a defendant to challenge his detention.

In the 4th Circuit's 77-page decision, Justice Diana Gribbon Motz outlined the case's stakes: "For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law."

Motz then wrote that the president had no authority to treat al-Marri as an enemy combatant, "or as anything other than a civilian."

Civil libertarians who championed al-Marri's case had warned that if the administration prevailed in its argument, the military could next round up U.S. citizens and jail them without trial. The court appeared to agree.

The judge criticized the administration's contention that the president has an inherent power to order the military to seize and detain civilians.

"The president cannot eliminate constitutional protections with the stroke of a pen," the court said, concluding that sanctioning the indefinite detention of civilians would have "disastrous consequences for the Constitution — and the country."

In a dissent, Judge Henry Hudson sided with the administration, saying al-Marri was properly designated an enemy combatant.

"Although al-Marri was not personally engaged in armed conflict with U.S. forces, he is the type of stealth warrior used by al Qaida to perpetrate terrorist acts against the United States," Hudson wrote.

Monday's 2-1 decision continues a string of high-profile rulings against the administration's enemy combatant policies and treatment of detainees in Guantanamo, Cuba.

The Supreme Court held in 2004 that the president didn't have a "blank check" to detain Yaser Hamdi, another detainee in the brig. After that ruling, a Charleston-based C-17 flew Hamdi back to Saudi Arabia. As a condition of his release, Hamdi agreed not to sue the U.S. government.

Another detainee, Jose Padilla, is being tried in Miami on conspiracy charges after being held in the brig for more than three years without charges.

"This is a landmark victory for the rule of law and a defeat for unchecked executive power," said Jonathan Hafetz, litigation director of the Brennan Center's Liberty & National Security Project and lead counsel in the al-Marri case.

Savage said that by coincidence, he phoned al-Marri on Monday morning, minutes before the 4th Circuit announced its ruling. "He was talking about how it's been four months and 10 days since there were oral arguments in the case."

The Washington Post contributed to this report. Reach Tony Bartelme at tbartelme@postandcourier.com or 937-5554.