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
"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
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
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