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Federal appeals court orders release of 'enemy combatant' from military custody

[JURIST] A US federal appeals court ruled [PDF text] Monday that the military cannot seize and imprison civilians lawfully residing in the United States and detain them as "enemy combatants." The US Court of Appeals for the Fourth Circuit [official website] rejected the government's contention that the president was authorized to order the military seizure of Illinois resident and Qatari native Ali Saleh Kahlah al-Marri [Brennan Center case materials] from civilian custody, and hold him indefinitely in a military jail without charge as an "enemy combatant" [JURIST news archive]. The court ruled that the Defense Department must 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.

The Justice Department argued that the federal courts lacked jurisdiction [JURIST report] over al-Marri's claims under the Military Commissions Act of 2006 [PDF text; JURIST news archive], but the Court rejected that argument:

We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his petition. Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government's allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri's conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian.

This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely.
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 bring in Charleston, South Carolina. Oral arguments were heard [JURIST report] in February. Reuters has more.

BREAKING NEWS: DOJ spokesman Dean Boyd announced that the Department of Justice will seek to have the Fourth Circuit Court of Appeals rehear the case en banc. AP has more.

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