Appeals Court Hears Al-Marri's Request for Access

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Federal appeals court judges vigorously challenge both government and defense lawyers at a hearing for Ali al-Marri, the only enemy combatant still in custody in the United States. Al-Marri is seeking the right to challenge his detention before a federal judge.


From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.


And I'm Melissa Block.

There's only one person being held in this country as an enemy combatant. And today a federal appeals court in Richmond, Virginia, heard arguments about his detention. The man's lawyers say he should be given the same rights as any criminal defendant, while the government argues President Bush can hold him indefinitely without a trial.

NPR's Ari Shapiro reports.

ARI SHAPIRO: Everyone in the Richmond courtroom today learned how Judge Diana Motz assesses whether someone is an ostrich. When I call someone an ostrich, she said, I look in the dictionary for the definition of an ostrich. Motz leveled her gaze at the government lawyer and asked what does the president use to call someone an enemy combatant?

The answer to that question is important because a man name Ali al-Mari has spent most of the last five years in solitary confinement as an enemy combatant. If you were a criminal suspect, he'd be entitled to a speedy trial, the right to question his accusers and so on. As it is, the government says he's an al-Qaida sleeper agent and they reserve the right to hold him in a military prison until the war on terrorism ends.

So what does the president use to call someone an enemy combatant? Government attorney David Salmon(ph) said he uses a law Congress passed right after 9/11 called the Authorization for the Use of Military Force. That law lets the government use military force against anyone who planned, authorized, committed or aided the 9/11 attacks. That means anyone with a connection to al-Qaida.

Judge Motz had a hard time with that. She said nations have wars against each other. People have quarrels or fights. To be sure, an individual can be a terrorist, but terrorists don't make wars. Salmon seem taken aback. He said Congress clearly believes we're at war with al-Qaida, so does the president. Courts, he said, can't second guess that. So Motz asked, what about PETA? If the president determined that People for the Ethical Treatment of Animals had a hand in 9/11, could you declare war on members of PETA?

Salmon said under the language of the Authorization for the Use of Military Force, yes, you could. But he was quick to point out that there was no such connection between PETA and 9/11. Motz smiled. At least now the members of PETA can sleep well at night, she said, unless they attend an al-Qaida training camp.

The two other judges on the panel sat quietly for most of government attorney Salmon's presentation. Not so when al-Mari's lawyer, Jonathan Hafetz, made the case for his clients. Hafetz said al-Mari was arrested in Peoria, Illinois, hardly a battlefield in any war. But Judge Roger Gregory disagreed with that description. He said the very attack that granted the president this power was a domestic attack, on New York, Washington and Pennsylvania.

Outside the courthouse, defense attorney Hafetz said if the United States is a battlefield in the war on terror, then the consequences could be terrifying.

Mr. JONATHAN HAFETZ (Defense Attorney for Ali al-Mari): If the government said that they could do what they have done to al-Mari to an American citizen, arrest them in the United States, locked him in a military brig, without a lawyer, for months on end without - and in solitary confinement and hold him for life without charge.

SHAPIRO: Hafetz said trials like that of 9/11 co-conspirators Zacharias Moussaoui proved that the criminal justice system is adequate to try even the worst terrorists. Apart from the question of whether the president can detain al-Mari as an enemy combatant, the court also has to decide whether it can hear this case at all.

Last summer, Congress passed a law called the Military Commissions Act. The government says it bars the court from even considering al-Mari's petition. So if the judges in this case issue a ruling on presidential power, it will also be a ruling on their own power to decide the case.

Ari Shapiro, NPR News.

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