Rehearing Sought in 'Sleeper Agent' Case

The U.S. Justice Department says it will ask a federal appeals court for an en banc rehearing of a three-judge panel’s ruling yesterday that the military could not hold a civilian indefinitely.

The 4th U.S. Circuit Court of Appeals in a 2-1 ruling said Ali Saleh Kahlah al-Marri could be charged with a crime, deported or held as a material witness. But he has a right to habeas corpus and must be released from military detention, the Richmond, Va.-based court said.

“The president cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention,” the court said.

The appeals court based suggested that al-Marri was moved from civilian custody, where criminal charges against him were pending, to a military brig because of allegations he was denied basic necessities and subjected to sensory deprivation, according to a New York Times account of the opinion.

A Justice Department statement says President Bush will use all the tools at his disposal to protect Americans.

“Al-Marri is an individual who trained at Osama bin Laden’s terrorist training camp in Afghanistan,” the statement said. “In the summer of 2001, he met with Khalid Shaykh Muhammed, the mastermind of the Sept. 11 attacks, and entered the United States just before Sept. 11 to serve as an al-Qaida sleeper agent and to explore methods of disrupting the U.S. financial system.”

The dissenter, U.S. District Judge Henry E. Hudson, is a Bush appointee, according to the Washington Post account of the opinion. A visiting judge from the Eastern District of Virginia, he wrote that Congress’ authorization to use military force permitted al-Marri’s detention.

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