Richmond, VA; Feb. 2, 2007 – Federal judges here heard arguments in a case some legal experts say could have broad implications on the US governmentâ€™s power to seize citizens and non-citizens living in the United States for indefinite detention without charges.
The case involves Ali Saleh Kahlah Al-Marri, an immigrant who entered the United States legally and who the government calls an "enemy combatant" even though he was never seen on a battlefield. Al-Marri is said to be the only so-called enemy combatant still held within US borders.
In the courtroom Thursday, Al-Marriâ€™s attorney asked the Fourth Circuit judges to give their client the habeas corpus right to challenge his detention. If the courts decide Al-Marri cannot challenge his detention, Al-Marriâ€™s supporters foresee a dangerous precedent.
"People could be disappeared," Al-Marriâ€™s attorney Jonathan Hafetz told The NewStandard by phone last week. "People could be locked in military jails without charge, without the right to review, without a lawyer, and essentially the president could set up GuantÃ¡namo right here in the United States."
Congress severely diminished the right to habeas corpus when it passed the Military Commissions Act of 2006. The Act, in part, took away habeas rights for any non-citizen the US government determined was "properly detained as an enemy combatant or is awaiting such determination." That Act also expanded the definition of "enemy combatant" to include not only people who engage in combat, but anyone who "purposefully and materially supported hostilities against the United States."
"People could be locked in military jails without charge, without the right to review, without a lawyer, and essentially the president could set up GuantÃ¡namo right here in the United States."
Under that broad definition, the president could declare anyone in the United States suspected of abetting terrorism an "enemy combatant." The Act is unclear as to what rights citizen "enemy combatants" would have.
Al-Marri came to the United States from Qatar with his wife and five children on September 10, 2001. According to court documents, Al-Marri was to pursue a masterâ€™s degree at Bradley University, where he had earned an undergraduate degree during the 1990s. But in December 2001, federal agents arrested Al-Marri in his home, purportedly to be held as a material witness in the September 11 terrorist attacks. He was later charged with several counts of making false statements and financial fraud, to which Al-Marri pleaded not guilty.
Before Al-Marri was tried for those crimes, President Bush signed an executive order in June 2003 declaring Al-Marri an enemy combatant. The charges against Al-Marri were dropped and he was transferred into the custody of the Department of Defense. He has been detained without charge ever since and held in solitary confinement at a Navy brig near Charleston, South Carolina.
The US government says it has ample evidence that Al-Marri was an al-Qaeda operative; his attorneys say much of this evidence is based on hearsay and is unreliable.
Former DOJ officials said that existing federal statutes have been used successfully to prosecute suspected terrorists within the United States.
During Thursdayâ€™s hearing, the Brennan Centerâ€™s Hafetz argued Al-Marri has "undisputable constitutional rights" to habeas corpus and to due process. As a lawful US resident accused of a crime, Al-Marri also has the right to confront and cross-examine the governmentâ€™s witnesses, said Hafetz, adding that "even if all the facts alleged by the government were true, he would not be an enemy combatant."
Arguing for the US government, Assistant Solicitor General David Salmons said President Bushâ€™s determination that Al-Marri was an enemy combatant is "consistent with the Authorization to Use Military Force," the broadly worded joint resolution passed by Congress just days after 9/11. The resolution gives the president the authority "to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001."
Salmons also said the Military Commissions Act "presupposes" that the United States is in a state of war with terrorists and the government "can detain individuals who are involved in that state of war."
Two judges questioned what this would mean if applied broadly. "What would prevent you from picking up anyone and saying, â€˜You are an enemy combatantâ€™?" asked Judge Roger Gregory. "You say this applies to US citizens?"
Salmons responded, "Yes."
But he urged the court to consider these cases individually, saying it was "inappropriate in a case like this to define the outer bounds."
A number of friend-of-the-court briefs have been filed in support of Al-Marriâ€™s right to habeas, including by former Attorney General Janet Reno and other former Justice Department officials.
"If Al-Marriâ€™s challenge to his indefinite detention is rejected," wrote the former DOJ officials, "we are gravely concerned that indefinite imprisonment of individuals within the United States will become increasingly common â€“ that the government will choose to avoid criminal prosecutions and the rights associated with them, such as the defendantâ€™s right to counsel and the governmentâ€™s obligation to prove guilt beyond a reasonable doubt."
The officials also said that existing federal statutes have been used successfully to prosecute suspected terrorists within the United States, including Richard Reid, the British man known as the "shoe bomber," and the 17 people convicted in connection with the 1993 World Trade Center bombing.
The US government says if the court dismisses Al-Marriâ€™s petition, it will provide him with a military tribunal. But with the significance of this case, Hafetz said it could be appealed by either party to the US Supreme Court after the Fourth Circuit delivers their decision.
"This raises the most fundamental questions of the [Bush] administrationâ€™s war on terror," Hafetz told TNS. "Can you deprive someone in the US access to habeas corpus? Can you hold someone indefinitely in a military jail whoâ€™s arrested in Peoria without charge? What questions could be more fundamental to what this nation is about than those questions?"