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Appeals Court Strikes at 'Enemy Combatant' Policy

MICHELE NORRIS, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.

ROBERT SIEGEL, host:

And I'm Robert Siegel.

A federal court says the government has no right to hold a legal immigrant as an enemy combatant. The federal appeals court in Richmond, Virginia issued that ruling today. It is a major blow to Bush administration policy.

The case involves an immigrant named Ali al-Marri, who has been in a military prison for four years. Now, the court says, he must be charged as a criminal suspect, deported or released.

NPR's Ari Shapiro reports.

ARI SHAPIRO: There are some court opinions that quietly draw a line in the sand on an important issue. Others bring in the bulldozers. This is the latter. Writing for the majority in this two-to-one decision, Judge Diana Gribbon Motz says, in the case at hand, the president claims power that far exceeds that granted him by the Constitution.

She says that for a court to side with the government in this case would effectively undermine all of the freedoms guaranteed by the Constitution. The case is about whether the president can take an immigrant who's in the United States designate him an enemy combatant and hold him indefinitely in a military prison without trial or access to a lawyer.

The defendant is the last enemy combatant being held in the United States. His name is Ali al-Marri. He legally came to the U.S. with his family the day before 9/11. He was pursuing a master's degree in Peoria, Illinois when the government picked him up and accused him of being an al-Qaida sleeper agent. Today, al-Marri is in a military brig in South Carolina.

The court today said that if the government's allegations against al-Marri are true, then the man is deplorable, criminal and potentially dangerous, but he is a civilian nonetheless. The judge has said the president can no more order the military to detain al-Marri than he can order the military to detain the Unabomber or the men responsible for the Oklahoma City bombings.

Mr. DAVID RIFKIN (Former Justice Department Lawyer): This is a willful, stupid, idiotic opinion without any basis in law.

SHAPIRO: David Rifkin worked in the Justice Department and the White House under past Republican presidents.

Mr. RIFKIN: They are saying very boldly. If you are fighting on behalf of a non-state actor, you cannot be an enemy combatant.

SHAPIRO: The Justice Department today said it's disappointed with the decision and plans to appeal to the entire Fourth Circuit. Judge Motz never says this outright, but the opinion suggests that the United States is not at war with al-Qaida.

Bobby Chesney teaches National Security Law at Wake Forrest University Law School.

Professor BOBBY CHESNEY (National Security Law, Wake Forrest University Law School): She says that many points out to the opinion that the linchpin of combatant status is affiliation with the military arm of an enemy government, an enemy state.

SHAPIRO: So Taliban fighters could be enemy combatants but not al-Qaida fighters. Human rights and civil liberties groups see this decision as a long overdue presidential smackdown that recognizes the basic right of everybody in the United States to due process. Jonathan Hafetz is al-Marri's lawyer.

Mr. JONATHAN HAFETZ (Associate Counsel, Liberty & National Security Project): All we've been asking for from the beginning is this fundamental right of all people in this country to be charged and tried if the government suspects them of wrongdoing and not to hold them incommunicado, in solitary confinement, without charge, without evidence and without a trial.

SHAPIRO: The opinion also sent a shot across the bow to Congress. And this part of the opinion was unanimous. Last year, Congress passed a law called the Military Commissions Act. Part of that law eliminates habeas corpus, the right to challenge one's detention for enemy combatants being held in the U.S., people like al-Marri.

Today, the court said Congress cannot take away al-Marri's right to habeas corpus because, quote, "as an alien captured and detained within the United States, he has a right to habeas corpus protected by the Constitution's suspension clause." Chesney says this part of the opinion may not have a huge impact.

Prof. CHESNEY: It's a question that only impacts him currently. In theory, it could come up with other people but it's been a few years. We've seen a lot of indictments but we haven't seen other people put into military custody in the U.S.

SHAPIRO: Still, Congress is considering a bill that would restore habeas corpus rights to enemy combatants in the United States and at Guantanamo and this court ruling could give the legislation a boost.

Ari Shapiro, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.