Judges Pose Questions On Bush Detainee Policy

Judges Pose Questions On Bush Detainee Policy
February 2nd, 2007  
Team Infidel

Topic: Judges Pose Questions On Bush Detainee Policy

Judges Pose Questions On Bush Detainee Policy
New York Times
February 2, 2007
Pg. 16

By Adam Liptak
RICHMOND, Va., Feb. 1 — In a series of probing and sometimes testy exchanges with a government lawyer, two of three judges on a federal appeals court panel here indicated Thursday that they might not be prepared to accept the Bush administration’s claim that it has the unilateral power to detain people it calls enemy combatants.
The case was brought by Ali al-Marri, a citizen of Qatar who is the only person on the American mainland being held as an enemy combatant, at the Navy brig in Charleston, S.C. Mr. Marri, a legal resident whom the government calls a sleeper agent for Al Qaeda, was arrested in Peoria, Ill., on Dec. 12, 2001, where he was living with his family and studying computer science at Bradley University.
“What would prevent you from plucking up anyone and saying, ‘You are an enemy combatant?’ ” Judge Roger L. Gregory of the United States Court of Appeals for the Fourth Circuit asked the administration’s lawyer, David B. Salmons.
Mr. Salmons said the executive branch was entitled to make that judgment in wartime without interference from the courts. “A citizen, no less than an alien, can be an enemy combatant,” he added.
Mr. Marri’s appeal had been expected mostly to concern the impact of a new law, the Military Commissions Act, which says the courts have no jurisdiction to hear challenges from any noncitizen “who has been determined by the United States to have been properly detained as an enemy combatant.”
But questions from Judge Gregory and Judge Diana Gribbon Motz suggested that the court might be willing to reach the more fundamental question of when and how such enemy-combatant determinations should be made.
Judge Motz asked, for instance, about the broader implications of the government’s position that the United States is at war with Al Qaeda and that people affiliated with it may be subject to military detention rather than criminal prosecution.
“Nations have wars against each other,” Judge Motz said. “People have quarrels or fights. Individuals can be terrorists. Individuals don’t make war.”
Mr. Salmons responded that a 2001 Congressional authorization to use military force after the Sept. 11 attacks had granted the president the power to detain Mr. Marri.
Judge Motz asked a series of hypothetical questions about whether the president could designate someone affiliated with People for the Ethical Treatment of Animals, or PETA, as an enemy combatant. “Could the president declare war on PETA?” she asked.
Mr. Salmons said the hypothetical was unrealistic, but he stopped short of categorically rejecting the idea. “The representative of PETA can sleep well at night,” he said, because the executive branch’s determination of who is an enemy combatant is a careful one.
Judge Motz also suggested that the criminal justice system could handle people like Mr. Marri.
“That doesn’t mean he doesn’t get punished,” Judge Motz said. “Perhaps he gets punished worse, under the criminal process.”
Mr. Marri was in fact charged with credit card fraud and lying to federal agents after his arrest in 2001, and he was on the verge of trial when he was moved into military detention in 2003.
The third judge, Henry E. Hudson, visiting from the Federal District Court for the Eastern District of Virginia, asked relatively few questions, most of them centered on the adequacy of the hearing Mr. Marri received in the trial court.
Judge Gregory, by contrast, subjected both lawyers to tough questioning.
“Do you agree,” he asked Jonathan Hafetz, a lawyer for Mr. Marri with the Brennan Center for Justice at New York University School of Law, “that Congress gave the president broad power after Sept. 11 to wage the war on terrorism?”
“Certainly, your honor,” Mr. Hafetz responded. “Broad, but not unlimited.”
Judge Motz indicated that the government’s shifting legal tactics in other cases had lost it a measure of credibility. It moved Jose Padilla, once labeled an enemy combatant, into the criminal justice system as the United States Supreme Court was considering whether to hear his challenge to that designation.
“Often the government in these cases has a late-breaking development,” Judge Motz said. “Is there any late-breaking development here?”
Mr. Salmons said no.
Judges Motz and Gregory were appointed by President Bill Clinton, and Judge Hudson by President Bush.

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