Ali al-Marri, the only person being held as an enemy combatant on U.S. soil, has indisputable rights as a legal resident of the United States, including the right to due process and the right to challenge his accusers in a court of law, his lawyer, Jonathan Hafetz, told a three-judge panel of the 4th U.S. Circuit Court of Appeals.
"The basic question is whether criminal or military law governs this case," Hafetz said. The president "cannot militarize the case of a man in Peoria with the stroke of a pen."
Al-Marri, 41, has been held in solitary confinement in the Navy brig in Charleston, S.C., since June 2003. The Qatar native has been detained since his December 2001 arrest at his home in Peoria, Ill., where he moved with his wife and five children a day before the Sept. 11, 2001, terrorist attacks to study for a master's degree. Federal investigators searched his laptop, found credit-card numbers on his computer, and charged him with credit-card fraud.
Upon further investigation, the government said, agents found evidence that al-Marri had links to al Qaeda terrorists and that he posed a threat to national security, shifted his case from the criminal system and moved him to indefinite military detention.
Al-Marri has denied the government's allegations and is seeking to challenge the government's evidence and cross-examine its witnesses in court. He also contends that President Bush has no legal standing to imprison someone indefinitely by declaring him an enemy combatant.
Hafetz argued that the Military Commissions Act doesn't repeal defendants' traditional right to challenge their detention. He also argued that al-Marri was improperly classified as an enemy combatant.
A Bush administration lawyer urged the panel to dismiss al-Marri's appeal, arguing that under the Military Commissions Act, the courts have no jurisdiction to hear cases of detained aliens who are declared enemy combatants.
David B. Salmons, assistant to the solicitor general, also argued that the government properly classified al-Marri as an enemy combatant, citing what the government said is evidence that he trained at an al Qaeda camp and met with Osama bin Laden and suspected Sept. 11 mastermind Khalid Sheik Mohammed.
Judge Diana G. Motz asked Salmons what would stop the president from declaring anyone an enemy combatant, including those who are citizens of nations not at war with the U.S., including al-Marri.
"What I don't understand is how you make one an enemy combatant," she said. "What did the president look to, to call someone an enemy combatant?"
Salmons said that Congress and the Supreme Court have given the president the authority to fight terrorism and prevent additional attacks on the nation, including declaring those with suspected al Qaeda links as enemy combatants. Furthermore, Salmons argued, al-Marri is "clearly an al Qaeda operative and qualifies as an enemy combatant."
"If the U.S. can do this, it's contrary to the Constitution," Motz said. "It would give other nations the ability to do that by declaring a U.S. citizen an enemy combatant."
Salmons responded: "It's different; we're responding to the attacks of September 11." He added that the government doesn't make such declarations lightly and that al-Marri will receive a combatant status review tribunal in the District of Columbia federal court.
The al-Marri case has drawn friend-of-the court briefs opposing the government's position from liberals and libertarians, including former Attorney General Janet Reno and seven other former Justice Department officials and 29 U.S. law school professors. All contend the government's treatment of al-Marri is unconstitutional, and would set a dangerous precedent in depriving U.S. residents of basic legal protections.
The case, which is expected to reach the Supreme Court, could help define how much authority the government has to indefinitely detain those accused of terrorist acts and to strip detainees of their right to challenge the lawfulness or conditions of their detention.
The court usually issues its opinion several weeks after hearing oral arguments.