'Enemy Combatant' Fights for Due Process

A federal appeals court in Richmond, Va., hears the case of a man held as an "enemy combatant." Ali al-Marri's lawyers say he deserves the same due process as any defendant. The federal government disagrees.

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Since 9/11, three men have been held as enemy combatants in the United States. Only one is in a military prison. His lawyers are in a Richmond courtroom this morning to challenge that detention. The case also tests a major new anti-terror law, as NPR's Ari Shapiro reports.

ARI SHAPIRO: On September 10th, 2001, Ali al-Marri moved with his wife and five kids from Qatar to Peoria, Illinois. He'd to college in Peoria in the '90s, and he came back to get a master's degree. Today, al-Marri is in solitary confinement at a naval prison in South Carolina. Jonathan Hafetz is his lawyer.

Mr. JONATHAN HAFETZ (Attorney): At the brig, he's not permitted to talk or see his family, who he hasn't seen in five years. He has no social contact. I mean, his lawyers are really his only link to the world.

SHAPIRO: Al-Marri is in the brig because according to the federal government, the family and the master's degree were a cover that made al-Marri the ideal terrorist. Bradford Berenson worked in the White House Counsel's Office from 2001 to 2003.

Mr. BRADFORD BERENSON (Attorney; Former Associate White House Counsel): Al-Marri is an al-Qaida agent here in the United States, not in a position substantially different from that of the 9/11 conspirators.

SHAPIRO: The government says when FBI agents searched al-Marri's computer, they found information about cyanides and other poisons. They discovered programs to hack into computers and create fake IDs, and they found coded e-mail communications with alleged 9/11 mastermind, Khalid Sheikh Mohammed.

Al-Marri was indicted on a variety of charges, but after he'd spent a year in the criminal justice system, just before his trial began, the government changed course. President Bush declared al-Marri an enemy combatant. That's when he went to the brig.

Berenson says the president's ability to other hold people in military custody is a vital weapon in the counterterrorism arsenal.

Mr. BERENSON: There may be many instances in which a person could not properly be charged with a crime, or a crime under the ordinary criminal code couldn't be proven. But we're protecting the safety of the country, requires that that person be removed from the battlefield and taken out of circulation and held pursuant to military authority.

SHAPIRO: That phrase - removed from the battlefield - is important, because in al-Marri's case the battlefield was Peoria, Illinois.

Mr. HAFETZ: The consequences of these interpretation are breathtaking.

SHAPIRO: Defense lawyer Hafetz.

Mr. HAFETZ: If the U.S. is a battlefield just like Afghanistan, then the president can snatch people off the street and detain them militarily because he thinks they're combatants, and indeed could even shoot people who he suspects are affiliated with a terrorist organization, just like a combatant in a war zone.

SHAPIRO: Berenson calls those claims wildly exaggerated, pointing out that al-Marri is currently the only enemy being held in the U.S.

There have been two others - Jose Padilla and Yaser Hamdi. They were both U.S. citizens. Al-Marri is not. Wake Forest law professor Bobby Chesney says that may not make much difference to the courts.

Professor BOBBY CHESNEY (Law, Wake Forest University): The tougher question is how much process is due to figure out if you've really got the right guy.

SHAPIRO: Al-Marri's lawyers say their client should get the same due process as any regular criminal defendant. But he has to overcome another obstacle that neither of the other enemy combatants in the U.S. did. Last summer, Congress passed a law called the Military Commissions Act.

According to the government's interpretation, that law closes the courthouse doors to al-Marri and other enemy combatants. So before the Fourth Circuit Appeals Court can decide whether the president can detain al-Marri, they have to decide whether the courts can even hear this case at all.

Ari Shapiro, NPR News, Washington.

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