Federal Court Panel Rejects Bush's 'Enemy Combatant' Policy

By Susan Jones | July 7, 2008 | 8:23 PM EDT

(CNSNews.com) - The U.S. Justice Department says it is disappointed with a federal court ruling that U.S. residents cannot be detained indefinitely as "enemy combatants."

In a 2-1 ruling on Monday, a panel of the 4th U.S. Circuit Court of Appeals in Richmond said the government must either charge Ali al-Marri or release him. Al-Marri, a legal U.S. resident from Qatar, is the only "enemy combatant" currently being detained in the United States, press reports said.

"Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them 'enemy combatants,'" the three-judge panel said.

Doing so tramples the Constitution and puts all U.S. citizens at risk, critics added.

But that leaves the Bush administration with the dilemma of what to do with enemies of the United States who wear no uniform and represent no military, and thus cannot be categorized as prisoners of war.

"We are disappointed with today's divided decision and intend to seek reconsideration before the entire court of appeals," the Justice Department said.

The statement noted that al-Marri trained at Osama Bin Laden's terrorist training camp in Afghanistan, and in 2001, he met with Khalid Shaykh Muhammed, the mastermind of the September 11th attacks.

The Justice Department says al-Marri entered the United States just before September 11 to serve as an al Qaeda sleeper agent and to explore methods of disrupting the U.S. financial system.

"The President has made clear that he intends to use all available tools at his disposal to protect Americans from further al Qaeda attack, including the capture and detention of al Qaeda agents who enter our borders," the Justice Department said.

The one dissenting judge, Bush appointee Henry Hudson, noted that al-Marri was not personally engaged in armed conflict against the United States. But, Hudson wrote, "he is the type of stealth warrior used by al-Qaeda to perpetrate terrorist acts against the United States."

(The two judges who slammed the Bush administration's "enemy combatant" policy are Clinton appointees.)

This is not the first court to rule against aspects of the Bush administration's anti-terrorism efforts.

Last year, a federal judge in Detroit declared the government's warrantless surveillance program to be unconstitutional.

Also last year, the Supreme Court said the Bush administration lacked the authority to order military trials for detainees at Guantanamo Bay. The Justices said military tribunals must be "explicitly authorized" by Congress, which later passed legislation authorizing military commissions to try terrorists for war crimes.

Al-Marri, a native of Qatar, is being held in the Navy brig at Charleston, S.C.

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