President Bush has the legal power to order the indefinite military detentions of civilians captured in the U.S., the federal appeals court in Richmond, Va., ruled Tuesday in a fractured 5-4 decision.
But a different 5-4 majority of the court, the United States Court of Appeals for the 4th Circuit, ruled that Ali al-Marri, a citizen of Qatar now in military custody in Charleston, must be given an additional opportunity to challenge his detention in federal court there. An earlier court proceeding, in which the government had presented only a sworn statement from a defense intelligence official, was inadequate, the second, overlapping majority ruled.
The decision was a victory for the Bush administration, which had maintained that a 2001 congressional authorization to use military force after the Sept. 11, 2001, attacks granted the president the power to detain people living in the U.S.
The court effectively reversed a divided three-judge panel of its own members, which ruled last year that the government lacked the power to detain civilians legally in the United States as enemy combatants. That panel ordered the government either to charge al-Marri or to release him. The case is likely to reach the Supreme Court.
How helpful the decision will be to be al-Marri remains to be seen, as the majority that granted him some relief was notably vague about what the new court proceeding should look like. In that respect, Tuesday's decision resembled last month's decision from the U.S. Supreme Court granting habeas corpus rights to prisoners held at Guantanamo Bay.
Al-Marri is the only person on the U.S. mainland known to be held as an enemy combatant. The government contended, in a declaration from the defense intelligence official, Jeffrey Rapp, that al-Marri was an al-Qaida sleeper agent sent to the U.S. to commit mass murder and disrupt the banking system.
He was arrested Dec. 12, 2001, in Peoria, Ill., where he was living with his family and studying computer science at Bradley University. He was charged with credit card fraud and lying to federal agents, and he was on the verge of a trial on those charges when he was moved into military detention in 2003.
Brian Roehrkasse, a Justice Department spokesman, said the decision properly recognized “the president's authority to capture and detain al-Qaida agents who, like the 9-11 hijackers, come to this country to commit or facilitate warlike acts against American civilians.”
Jonathan Hafetz, a lawyer for al-Marri, said an appeal to the Supreme Court was under consideration. He called the 4th Circuit's decision deeply disturbing.
“This decision means the president can pick up any person in the country – citizen or legal resident – and lock them up for years without the most basic safeguard in the Constitution, the right to a criminal trial,” Hafetz said.
The 4th Circuit is generally considered the nation's most conservative federal appeals court. The closely divided and complex decision in a major terrorism case therefore came as something of a surprise.
Al-Marri's unusual situation played a role in that, said Robert Chesney, a law professor at Wake Forest University. Al-Marri “was lawfully present in the U.S. and then arrested and held here, as opposed to being a noncitizen captured in a foreign land,” Chesney said. “This consideration makes his case more difficult even in the eyes of relatively conservative jurists.”