RICHMOND, Va. – The Bush administration has the authority to capture and detain suspected enemy combatants in this country but must give them an adequate opportunity to challenge their military detention, a closely divided federal appeals court ruled Tuesday.
The decision by the 4th U.S. Circuit Court of Appeals was a mixed bag — part victory and part setback — for both the administration and Ali al-Marri, the only enemy combatant seized and held on U.S. soil. The administration has claimed broad power to detain enemy combatants suspected of terrorism.
In a 5-4 ruling, the court said the government had authority to hold al-Marri, a legal U.S. resident, in military custody if charges against him are true. That decision vacated last year's 2-1 panel ruling ordering an end to al-Marri's military detention.
However, the court also split 5-4 on the question of whether al-Marri was denied due process. The majority said he was, and that additional hearings are necessary in U.S. District Court to allow al-Marri to challenge whether he was properly designated an enemy combatant.
"At least the president's claim of unchecked, unreviewable detention power has been squarely rejected," said al-Marri's attorney, Jonathan Hafetz.
However, he said he probably will appeal to the U.S. Supreme Court because he is troubled that the decision "gives the president the power to use the military to sweep up citizens and noncitizens in the U.S."
Brian Roehrkasse, spokesman for the U.S. Justice Department, said he was pleased that the court affirmed the president's authority to capture and hold Al Qaeda operatives who enter this country.
"That authority is backed by the support of Congress and is a vital tool in protecting the nation against further terrorist attacks," Roehrkasse said.
He said federal prosecutors believe al-Marri "had already received all the process he was due," but were studying the appeals court's opinion and would respond to al-Marri's claims in district court.
Al-Marri has been held in a Navy bring 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 Qaeda 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 Qaeda, regardless of where they are captured.
Seven of the nine appeals court judges wrote separate opinions in the case. Judge William B. Traxler was the swing vote, joining four colleagues who supported the detention but also siding with four others who said al-Marri was entitled to more due process to challenge his accusers.
Traxler, who was appointed to the court by President Clinton, said al-Marri's detention was proper because "the war that al-Qaida wages here and abroad may be viewed as unconventional, but it is a war nonetheless and one initially declared by our enemy."
However, he said al-Marri's case is different from that of another enemy combatant, Yaser Hamdi, a U.S. citizen captured on the battlefield in Afghanistan. Al-Marri is "entitled to the normal due process protections available to all within this country, including an opportunity to confront and question witnesses against him," he wrote.
The four judges who sided squarely with the administration on both issues — detention and due process — were appointed by Republican presidents. The four who opposed the administration on both counts were Clinton appointees.
Hafetz said the divisions show the need for Supreme Court review.
The appeals ruling comes a month after the 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.