Justice Dept. Argues No Habeas Rights for Non-Citizen "Enemy Combatants"

In one of the first cases to test the limits of the "Military Commissions Act", which was passed last month, the Justice Department is arguing that Ali Saleh Kahlah al-Marri, a legal U.S. resident and citizen of Qatar, who has been in a South Carolina military brig since 2003 accused of being an Al Queda sleeper agent, no longer possesses the right to contest his detention through a writ of habeas corpus.

As the Washington Post puts it, "Critics of U.S. detention policies warned yesterday that a brief legal document filed by the Justice Department this week raises the possibility that any of the millions of immigrants living in the United States could be subject to indefinite detention if they are accused of ties to terrorist groups."

As the article states:

"In a six-page motion filed in the U.S. Court of Appeals for the 4th Circuit in Richmond, Justice Department lawyers argue that an anti-terrorism law approved by Congress last month allows the government to detain any foreign national declared to be an enemy combatant, even if he is arrested and imprisoned inside the United States."

This isn't really news, but the interesting aspect of Al-Marri's case is that, unlike most of those currently held in Gitmo, he was not captured on foreign soil, but was apprehended in the U.S., which according to Robert Chesney, a specialist in national security law at Wake Forest University gives him a "much stronger constitutional argument."

As the article concludes,

"Douglas Kmiec, a Pepperdine University law professor who was a Justice Department official during the Ronald Reagan and George H.W. Bush administrations, said the Justice brief signals that this administration believes Congress has given it clear authority to declare foreign nationals as enemy combatants, wherever they are captured.

"It not only opens up the universe of people who may be subjected to these specialized procedures, but it does it emphatically with Congress's approval," Kmiec said. "It remains to be seen whether that changes the judicial dynamic."