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DOJ urges appeals court to reconsider release of 'enemy combatant' held in US

[JURIST] The US Department of Justice (DOJ) asked the US Court of Appeals for the Fourth Circuit Wednesday to re-hear [petition, PDF] the case of Ali Saleh Kahlah al-Marri [Brennan Center case materials], appealing the court's panel decision [PDF text; JURIST report] that the military cannot seize and indefinitely imprison civilians lawfully residing in the US as "enemy combatants" [JURIST news archive]. In its petition for a rehearing en banc, the DOJ argued that the president was authorized to order the military seizure of al-Marri, an Illinois resident and Qatari native, under the 2001 Authorization for Use of Military Force (AUMF) [text], passed immediately following the September 11, 2001 attacks. The DOJ rejected the panel's decision, arguing:

The panel's contrary decision radically circumscribes the President's authority to wage the ongoing military conflict against al Qaeda and impairs his ability to protect the Nation from further al Qaeda attack at home. Indeed, the decision paradoxically construes the AUMF to authorize the detention of enemy combatants except those identically situated to the al Qaeda fighters responsible for the September 11 attacks, to which the AUMF responded. The decision accordingly warrants swift reconsideration and repudiation by the en banc court.
In a 2-1 decision, the Fourth Circuit panel ruled earlier this month that allowing the military to detain civilians within the US indefinitely without charge posed "disastrous consequences for the Constitution." The court ordered that the Defense Department release al-Marri from military custody within a reasonable amount of time, perhaps transferring him back to civilian authorities, or initiating deportation proceedings, just so long as military detention ceases.

Al-Marri was arrested at his home in Peoria, Illinois by civilian authorities, and indicted for alleged domestic crimes in 2001. In 2003, President George W. Bush declared him an enemy combatant [CNN report] and ordered the attorney general to transfer custody of al-Marri to the defense secretary, claiming inherent authority to hold him indefinitely. Al-Marri has claimed abuse [JURIST report] while being held in a US Navy brig in Charleston, South Carolina. AP has more.

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