U.S. Appeals Court Rejects Administration’s Claimed Ability to Declare Civilian an “Enemy Combatant” for Indefinite Military Detention

NEW YORK — In a severe blow to the Bush administration’s claims of executive power, the federal Court of Appeals for the Fourth Circuit today said it would refuse to “alter the constitutional foundations” of the United States by upholding the government’s indefinite detention of a civilian in military custody in this country. Human Rights First, which submitted friend-of-the-court briefs in the case, called the ruling a “welcome and powerful vindication of the role of the courts in applying the rule of law in national security cases.”

Judge Diana Gribbon Motz, writing for a 2-to-1 majority, held that neither the Constitution nor any congressional statute allowed the president to designate U.S. legal resident Ali Saleh Kahlah al-Marri, as an enemy combatant subject to military detention. The Court also ruled unanimously that the Military Commissions Act of 2006 did not deprive it of jurisdiction to hear Mr. al-Marri’s habeas corpus petition challenging his detention.

“In case after case, this nation’s judicial branch has told the administration that it may not trample on fundamental rights in the name of national security,” said Hina Shamsi, Deputy Director of the Law and Security Program at Human Rights First. “Here, the majority reaffirmed the administration’s obligation to obey the Constitution and the Geneva Conventions. This decision serves both the interests of justice and the interests of the United States.”

Mr. al-Marri, a Qatari student, was initially arrested in Illinois in December 2001 and detained in New York City as an alleged material witness in the 9/11 attacks. He pled not guilty to eventual charges of financial fraud and making false statements. In June 2003, President Bush declared him an “enemy combatant” in the “war on terror” and ordered him transferred to military custody. Mr. al-Marri was then held incommunicado for 16 months and was interrogated under allegedly coercive and abusive conditions. In July 2004, his counsel filed this habeas corpus petition, challenging Mr. al-Marri’s detention as an “enemy combatant.”

“Key to the Court’s decision that Mr. al-Marri should not be in military custody is the judges’ thorough and well-reasoned application of the fundamental law-of-war distinction between civilians and combatants. Mr. al-Marri is not alleged to have fought against the United States, or to have been a part of armed forces against the United States, and he was picked up in Illinois, far from any battlefield,” added Shamsi. “In short, the administration over-reached, and the Court said no.”

Human Rights First submitted two friend-of-the-court briefs to the appeals court, arguing that Mr. al-Marri’s on-going military detention conflicted with the United States’ international obligations, and compromised its international standing as a proponent of the rule of law. Additional details are available at: http://www.humanrightsfirst.org/our-work/law-and-security/right-to-remedy/inthecourts/
supreme_court_al_marri.htm.