Peoria Journal Star

Friday, February 2, 2007

Detainee policy questioned

Judges seek answers on process for determining enemy combatants during al-Marri hearing




RICHMOND, Va. - During oral arguments in the case of a former West Peoria man suspected of being an al-Qaida sleeper agent, federal appeals court judges on Thursday sharply questioned an attorney for the Bush administration over its policies for detaining suspected terrorists.

Qatari national Ali Saleh Kahleh al-Marri, the only person currently being held as an enemy combatant on U.S. soil, is testing the scope of presidential authority with his appeal for release before a three-judge panel of 4th Circuit Court of Appeals.

"What I don't understand is how you make one an enemy combatant?" asked Judge Diana G. Motz. "What did the president look to, to call someone an enemy combatant?"

Judge Roger L. Gregory asked, "What would prevent you from plucking up anyone and saying 'Oh, you're an enemy combatant?'"

David B. Salmons, assistant to the solicitor general, said that Congress and the Supreme Court have given the president the authority to fight terrorism. He said al-Marri was properly detained as an enemy combatant because of his close ties to al-Qaida.

"I don't think it's a difficult question," Salmons said.

The government wants the panel to dismiss the case, contending that under the Military Commissions Act, the courts have no jurisdiction over enemy combatants. But al-Marri's lawyer argued that al-Marri is being detained unconstitutionally and should be allowed a trial.

"The fundamental question is whether he can be detained as an enemy combatant or whether he's entitled to a criminal trial," said al-Marri's attorney Jonathan Hafetz.

If the president can "with the stroke of a pen" militarize a case from Peoria, the government "can use the military process to swallow the criminal justice system," Hafetz said.

Hafetz contends the presidential authority to designate enemy combatants is limited to those captured on the battlefield.

Al-Marri was a graduate student at Bradley University when he was arrested in December 2001 for credit card fraud and lying to the FBI. In June 2003 he was sent to a military brig in Charleston, S.C., where he has been held in solitary confinement ever since. Investigators found files on his computer on how to make hydrogen cyanide, a potentially lethal toxin, and said he met with Osama bin Laden and received money from an al-Qaida financier.

Al-Marri has denied the allegations, which were made in an affidavit filed by the head of a government anti-terrorism unit. Hafetz said the allegations are based on hearsay and might have come from individuals who reportedly were tortured. He seeks the right to examine the government's evidence and challenge its witnesses in court.

An appeals court decision is expected within two months.

While the 4th Circuit is considered the most conservative federal appeals court in the nation, two of the three judges deciding the al-Marri case - Motz and Gregory - were appointed by President Clinton. The third judge is U.S. District Judge Henry Hudson, a former prosecutor, assigned temporarily to the appeals court.

The case is expected to reach the Supreme Court and may help determine the constitutional latitude the Bush administration has in fighting terrorism. The case has drawn a number of friend-of-the-court briefs, including one from former Attorney General Janet Reno and two U.S. attorneys from the Reagan administration opposed to the government's position.

"The government is essentially asserting the right to hold putative enemy combatants arrested in the United States indefinitely whenever it decides not to prosecute those people criminally - perhaps because it would be too difficult to obtain a conviction, perhaps because a motion to suppress evidence would raise embarrassing facts about the government's conduct or perhaps for other reasons," stated the brief filed by Reno and others.


Dori Meinert can be reached at (202) 737-7686 or