RENEE MONTAGNE, host:
This is MORNING EDITION from NPR News. I'm Renee Montagne.
STEVE INSKEEP, host:
And I'm Steve Inskeep.
Today a man being held as an enemy combatant gets a day in court. And one question is whether he is entitled to a day in court. He's the only person being held in the United States as an enemy combatant, and the case of Ali al-Marri addresses some of the biggest legal issues in the war on terror.
NPR's Ari Shapiro reports.
ARI SHAPIRO: You might think that this long after 9/11 we would know whether the president can legally hold someone like Ali al-Marri indefinitely without charging him. But we don't. And that's the question before the entire 4th Circuit Appeals Court in Richmond, Virginia today.
Al-Marri is a citizen of Qatar. He and his family immigrated to Peoria, Illinois on September 10th, 2001. Al-Marri was in graduate school, but the government claims he's actually a terrorist sleeper agent sent to attack the United States.
And Wake Forest law professor Bobby Chesney says that makes this case terribly important.
Professor BOBBY CHESNEY (Wake Forest University School of Law): It's the most important scenario. It's an alleged al-Qaida member who is not on a traditional battlefield, who's in a civilian setting but is here, according to the government, to do precisely the sorts of things that resulted in the 9/11 attacks themselves.
SHAPIRO: And the government says since al-Marri may be an al-Qaida sleeper agent, the president should be able to hold him in military custody as an enemy combatant. Al-Marri's lawyer, Jonathan Hafetz, says giving the president that authority would turn the American legal system on its head.
Mr. JONATHAN HAFETZ (Attorney): What it would do is it would open the door to allow the president to pick up people - anyone in the United States - and hold them for the rest of their lives based on executive say-so. The nation was founded on the proposition that you can't do this.
SHAPIRO: A three-judge panel of the appeals court agreed with Hafetz. They accused the president of trying to, quote, "eliminate constitutional protections with the stroke of a pen."
But today the case is before all 10 judges on the appeals court and they're generally considered more conservative than the panel that ruled in al-Marri's favor. Since 9/11, there have been two other enemy combatants in the United States and lots of criminal trials for terrorism-related crimes.
Washington attorney David Laufman handled some of those terrorism cases, including the trial of an American named Ahmed Omar Abu Ali, who's now serving 30 years in prison. Laufman says the decision of whether to indict a suspect terrorist or make him an enemy combatant almost always boils down to what kind of evidence the government has against someone.
Mr. DAVID LAUFMAN (Assistant United States Attorney): Where the government has determined that it is likely to have admissible evidence, it is likely to permit the criminal justice system to go for. That's what happened in the case of Abu Ali, which I prosecuted, which was under consideration for an enemy combatant designation, but which ultimately we charged in the criminal system.
SHAPIRO: On the other hand, Laufman says, if the case depends on hearsay evidence, or testimony that came out under coercion, or evidence that would compromise sensitive intelligence sources and methods, then the government may not be able to try the person in a criminal court. So the president goes the enemy combatant route.
Traditional enemy combatants are people detained in battle. So, Laufman says, today's cases raises the crucial question...
Mr. LAUFMAN: What is the battlefield in the war against terror? In the government's position, it is a worldwide battlefield that includes our domestic homeland.
SHAPIRO: But the panel that ruled on this case earlier this year said that position, quote, "would effectively undermine all of the freedoms guaranteed by the Constitution." Today the judges also have to consider whether they can hear al-Marri's case at all.
The government argues that a law called the Military Commissions Act cuts off al-Marri's petition. The constitutionality of that law is teed up for consideration by the Supreme Court in a separate case later this year.
Ari Shapiro, NPR News.
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.