Stanford professor calls Al Qaeda enemy combatant
ruling quintessentially important
Photo courtesy Washington
DC Stanford Association
By Julia Cheever
June 12, 2007
A Stanford University law professor Monday called a federal appeals
court decision barring indefinite detention of civilians "a
quintessentially important ruling in the war on terrorism."
Mariano-Florentino Cuellar, an associate professor of international
criminal law, said, "The decision demonstrates how the courts
push against the administration's assertion of executive authority."
In the decision, the 4th U.S. Circuit Court of Appeals in Richmond,
Va., said the government cannot indefinitely keep in military
custody a legal U.S. resident whom it has labeled as an enemy
The court ruled in the case of Ali al-Marri, a Qatar citizen
who entered the United States legally in 2001 to obtain a master's
degree in computer science in Illinois.
The government contends he is a "sleeper agent" for
Al-Marri was arrested in 2001. He was declared an enemy combatant
by President Bush in 2003 and since then has been held without
a trial in solitary confinement in a U.S. naval brig in South
A panel of the appeals court said by a 2-1 vote that al-Marri
has a federal constitutional right to challenge his detention
through a habeas corpus petition and that "military detention
of al-Marri must cease."
The court majority said, "Put simply, the Constitution does
not allow the president to order the military to seize civilians
residing within the United States and detain them indefinitely
without criminal process, and this is so even if he calls them
The court said allowing such detentions "would have disastrous
consequences for the Constitution and the country."
The panel said al-Marri must be released from military custody
"within a reasonable period," but said he could be transferred
to civilian authorities to face criminal prosecution in court
or could be deported to Qatar.
The U.S. Justice Department said, "We are disappointed with
today's divided decision" and said it plans to seek review
by an expanded panel of the appeals court.
The agency said, "The president has made it clear that he
intends to use all available tools at his disposal to protect
Americans from further Al Qaeda attack, including the capture
and detention of Al Qaeda agents who enter our borders. We accordingly
intend to seek further review of today's decision."
Cuellar said, however, that he thinks the ruling will be upheld
on further appeal.
He said the Constitution provides that the right to file habeas
corpus challenges to illegal imprisonment can be suspended only
in times of rebellion or invasion.
"Congress can't be viewed as having suspended that right,"
Al-Marri is currently the only U.S. resident arrested on American
soil who is being held in military custody as an enemy combatant.
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