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Several members of the 4th U.S. Circuit Court of Appeals appeared ready last week to back President George W. Bush’s use of executive power to imprison indefinitely U.S. residents deemed enemy combatants. The court, sitting en banc, heard arguments in the case of Ali Saleh Kahlah al-Marri, an Illinois man accused of being an al-Queda sleeper agent. Al-Marri, a U.S. resident originally from Qatar, was arrested just after the Sept. 11, 2001, terrorist attacks. He has been detained in a Navy brig in South Carolina for more than four years without being formally charged. In June, a 4th Circuit panel ordered al-Marri released, finding that his due process rights had been violated. The Justice Department asked the full 4th Circuit to vacate the decision. During last week’s hearing, al-Marri’s attorney, Jonathan Hafetz from the Brennan Center for Justice at the New York University School of Law, faced intense questioning from many of the 4th Circuit judges. Judge J. Harvie Wilkinson III said he didn’t understand “all of the hoopla” surrounding al-Marri’s case, given that only a handful of people in the United States have been declared enemy combatants, unlike the roundup of German citizens during World War I and the large-scale internment of Japanese citizens during World War II. “We’re not talking about a dragnet,” he said. “We’re not talking about a sweep.” Several of the judges appeared to favor the Justice Department’s argument that the Authorization for Use of Military Force, passed by Congress shortly after Sept. 11, 2001, permits indefinite detentions of enemy combatants because the law gave the president the power to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the [9/11] attacks.” One of the judges apparently sympathetic to Hafetz’s argument was Diana Gribbon Motz, who authored the earlier panel decision finding that the president’s ability “to order the military to seize and indefinitely detain [U.S.] civilians, even if the president calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution � and the country.” Gregory Garre, principal deputy solicitor general at the Justice Department, argued that both legal U.S. residents and U.S. citizens could be declared “enemy combatants” by the president and that there was no definite time period required for their release. That statement triggered a skeptical response from Judge M. Blane Michael. “You’re going to keep this man in custody for a lifetime. That’s what it looks like,” Michael said. “You don’t have a traditional war [with a definite ending]. You’re in uncharted territory.” Al-Marri � a student at Bradley University in Peoria, Ill. � had faced federal charges of credit card fraud, identity theft and lying to the FBI in a post-Sept. 11, 2001, investigation. But those charges were dismissed after Bush signed a one-page executive order in 2003 that declared al-Marri to be an “enemy combatant” who must be imprisoned “to prevent him from aiding al Qaeda in its efforts to attack the United States.” The Justice Department has alleged that al-Marri attended an al-Queda terrorist training camp in the 1990s, received funding from al-Queda operatives and had a laptop computer at his Illinois home that contained technical information about cyanide and other poisonous chemicals. Hafetz said he would appeal to the U.S. Supreme Court if the 4th Circuit issues an adverse ruling, which seems likely, given the court’s past pro-government rulings in several terrorism cases and its conservative bent. To prevail, al-Marri will need five of the nine judges who heard his case to vote in his favor.

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