Bush's war powers further scrutinized

The battle to define presidential powers in the "war on terror" came under renewed scrutiny on Feb. 1 when a foreign prisoner held in the US on suspicion of being an al-Qaida "sleeper agent" asked a court to declare his detention unconstitutional. Ali Saleh Kahlah al-Marri, a Qatari citizen studying computer science in the US, was arrested in Illinois in late 2001 in connection with the investigation into the Sept. 11 attacks. He was slated for a criminal trial in 2003 on charges including credit card fraud. Just weeks before the trial, however, President Bush classified Marri as an unlawful "enemy combatant" in the "war on terror." He was removed from the criminal justice system and transferred to a prison in South Carolina, where he has remained without direct access to his family for three and a half years. But lawyers for Marri argued in a federal appeals court in Virginia on Feb. 1 that Bush did not have the authority to declare legal US residents as enemy combatants. "The president cannot militarize the case of a man in Peoria [Illinois] with the stroke of a pen," said Jonathan Hafetz, a New York University lawyer representing Marri. If the government is right, said Hafetz, "they can pick up any immigrant in this country, lock them in a military jail and hold the keys to the courthouse. If this case stands, the United States could effectively 'disappear' people." Judge Diana Gribbon Motz questioned under what circumstances the president can order someone on US soil to be detained as an enemy combatant. Under the traditional laws of war, she said, combatants are captured on a battlefield and connected to a nation or state at war with the United States. Motz said that she is concerned about giving the government broad authority "to pluck up anyone from the streets of the United States" and added: "We don't want other nations to do that to our people." The Justice Department argued that Congress gave Bush the authority to declare Marri an enemy combatant when it gave him the ability to use force to prosecute the "war on terror" after Sept. 11. "If the government prevails, any one of the legal permanent residents in the US could–on the president's say-so... be held indefinitely as an 'unlawful enemy combatant' with no right to challenge his or her imprisonment in court," said Human Rights Watch. In court on Feb. 1, the Justice Department argued the battlefield in the "war on terror" included the US.