MICHELE NORRIS, host:
A federal court in Virginia has ruled in the case of the only detainee currently held as an enemy combatant on the U.S. mainland. The detainee is Ali al-Marri. He was arrested in December 2001 in Peoria, Illinois.
And NPR's legal affairs correspondent Nina Totenberg is here to explain what's happened today.
Nina, first of all, we should explain this is not one ruling but seven separate opinions covering 216 pages. But let's go back all the way to the beginning so we can get a sense of what's happened so far in this case.
NINA TOTENBERG: Okay, Michele, just the facts, ma'am. Al-Marri entered the United States the day before 9/11 with his wife and children, and after the attacks, he was arrested and charged with credit card fraud - essentially having lots of fake credit cards, using them to hide financial transactions -and with lying to the FBI. Eventually, those charges were dropped when President Bush declared him an unlawful enemy combatant, and he was transferred to the naval brig at Charleston, South Carolina for interrogation where he's been held ever since.
In 2003, lawyers filed a writ of habeas corpus challenging the basis for his detention. By 2004, the government replied with its justification namely an affidavit filed by Jeffrey Rapp, who's a Department of Defense official, who said that al-Marri entered the U.S. as a sleeper agent for al-Qaida, that he intended to facilitate terrorist acts in the future. And that was good enough for the district court judge. But today, the federal court of appeals in Richmond said al-Marri was denied due process because he was, in essence, required to prove his innocence and given no access to the material or the witnesses against him.
NORRIS: So, Nina, I understand there were really two issues to be decided and two split decisions. What were those two issues?
TOTENBERG: The first question was whether the president has the authority to designate a legal resident in the United States as an unlawful enemy combatant. And the answer of five to four was yes. The court said, under the authorization for use of military force passed after 9/11, Congress said that there can be the detention of al-Qaida operatives engaged in planning future attacks on the U.S., and if al-Marri is one of those terrorists, he can be designated an unlawful combatant and detained indefinitely.
The second question, however, was what sort of due process someone like al-Marri is entitled to before he's imprisoned without charge? And on this question, the court split five to four the other way saying that he's entitled to more than he got. Requiring him to prove his innocence when he has no access to witnesses or materials that have been used against him, said the court, is an unfair process.
NORRIS: So a split decision. Five to four in the administration's favor and five to four against the administration.
NORRIS: Who is switching sides in this case?
TOTENBERG: Well, there were four Reagan and Bush appointees on one side, four Clinton appointees on the other side and one Clinton appointee, William Traxler split the difference. In his opinion saying that al-Marri have been denied a fair process, Traxler went out of his way to note that while this case involves a foreigner legally in the U.S., its rules could just as easily be applied to an American citizen.
This was not a case, he observed, of a person captured on the battlefield where military operations might be compromised and interfered with if everyone had to stop to justify a detention. This was a case where the detainee was initially charged with regular criminal offenses and where the FBI and intelligence authorities are here. In general, he seem to suggest the government cannot, without some real national security justification, just seize someone, designate him as an enemy combatant, lock him up, and justify with a hearsay declaration that nobody can cross examine or rebut.
NORRIS: Nina, what happens now?
TOTENBERG: Well, either side can appeal to the Supreme Court but there's no guarantee the justices will agree to hear the case, at least for now. And if they don't, it will go back to the district court for further proceedings. And a Department of Justice statement issued this evening seems to suggest that that's okay with the Justice Department, that they're prepared to go forward and live with this decision.
So if that happens, the lawyers for the government and for al-Marri will fight it out over what information must be produced, witnesses will have to testify, what information can be seen if not by the lawyers at least by the district court judge.
And so, on the one hand, there are a lot of dangerous people in the world that want to hurt the United States. On the other, you know, some of these cases have evaporated like the morning mist when they've been held up to the sunlight.
NORRIS: Thank you, Nina.
TOTENBERG: Thank you.
NORRIS: That was NPR legal affairs correspondent Nina Totenberg.
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