Full 4th Circuit Hears 'Enemy Combatant' Case

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Whether the president has the power to hold a legal U.S. resident in military custody as a so-called enemy combatant is being argued today before the full 4th U.S. Circuit Court of Appeals.

A three-judge panel of the Richmond, Va.-based 4th Circuit ruled in June that the president does not, even under the Military Commissions Act of 2006. Thus, Ali Saleh Kahlah al-Marri, a Qatari national who has been held in a military prison in South Carolina since 2003, has a constitutional right to challenge his custody in civilian court. However, the Bush administration asked for an en banc hearing before the full appeals court, which began today. The government contends that Marri met with Osama bin Laden before coming here as a purported student and planned to help launch a second, post-9/11 wave of terrorist attacks.

“As a permanent, lawful resident in this country, Mr. Marri cannot be detained as an enemy combatant,” argued his attorney, Jonathan Hafetz of the Brennan Center for Justice, according to the Washington Post. “To conclude otherwise would sanction a power that the president has never had and was never meant to have.”

But to say that only foreign nationals captured on the battlefield can be held in military custody would mean that “25 or 30 terrorists could sneak into the U.S.” without military intervention, responded Judge Paul Niemeyer, according to the Associated Press.

Although some contend that the civilian court system lacks needed powers to deal appropriately with terrorism suspects, that certainly isn’t true in every case.

As discussed in an ABA Journal feature story in a special issue focused on terrorism, would-be jumbo jet pilot trainee Zacarias Moussaoui was convicted and sentenced to life by a civilian jury as a co-conspirator in the Sept. 11 terrorist attacks.

And even though many felt the case against him was weak, a federal jury in Miami convicted Jose Padilla and two other defendants in August of providing material support to terrorism in a case that began with allegations—since dropped—that he intended to detonate a so-called dirty bomb, as discussed in an earlier ABAJournal.com post.

But the Military Commissions Act, as a Belgian sociologist and author points out in a recent Monthly Review article translated from the French, is the latest in a series of laws that seeks to change this approach by transforming the traditional legal understanding of war as an activity largely unrelated to this country’s internal criminal justice system. If these laws are upheld and routinely applied, this will be, according to author Jean-Claude Paye, “a turning point in the legal and political organization of the Western world.”

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