WASHINGTON President George W. Bush has the power to order the imprisonment of an al Qaeda suspect in the United States but the detainee must be able to challenge his status as an "enemy combatant," a federal appeals court ruled on Tuesday.
The court, based in Richmond, Virginia, split 5-4 on both issues in a ruling about a Qatari national, Ali Saleh Kahlah al-Marri, the only foreign national held in the United States as an "enemy combatant."
If the government's allegations about Marri are true, then the U.S. Congress gave Bush the power to detain him as part of its authorization for use of military force after the September 11 attacks by al Qaeda in 2001, the court ruled.
But the court also said Marri, held in a U.S. Navy brig in Charleston, South Carolina, for more than five years without being charged, had not been given an adequate opportunity to challenge his detention.
The court sent the case back to a federal judge in South Carolina for new proceedings on the evidence of whether Marri is an "enemy combatant" subject to military detention.
Jonathan Hafetz of the Brennan Center for Justice in New York, one of the lawyers representing Marri, said Tuesday's ruling "flatly rebukes the administration's view of untrammeled executive power, unchecked by any court."
The decision was the latest scrutiny of Bush's war on terrorism policies adopted after the September 11 attacks.
The Supreme Court rebuked Bush in a landmark ruling last month stating that prisoners held at the U.S. military base at Guantanamo Bay in Cuba can go before federal judges in Washington to seek their release.
Marri entered the United States on September 10, 2001, and was said by a captured al Qaeda member to have come to help operatives plotting a second wave of attacks.
A legal U.S. resident, Marri was initially detained in December 2001 in the investigation of the September 11 attacks.
He later was indicted in Illinois, where he attended school, for credit card fraud, making false statements to the FBI and other charges. Marri pleaded not guilty.
'FRAUGHT WITH DANGER'
The U.S. government dropped the charges on in June 2003, when Bush designated him an enemy combatant. Marri was taken to the brig in Charleston.
The appeals court issued seven separate opinions totaling more than 200 pages. But Judge William Traxler's opinion was the controlling one for the divided court.
"In these uncertain times, we must tread carefully when balancing our need for national security with our rights as individuals," he wrote.
"This case is fraught with danger to individual rights and for that reason I expressly limit the reach of my opinion and decide no more than is explicit and necessary to address the issues presented to us."
Spokesman Brian Roehrkasse said the Justice Department was pleased the ruling recognized Bush's authority to capture and detain al Qaeda agents who come to the United States.
He said the government is studying the court's decision that also gives Marri a new opportunity to challenge the factual basis for his detention and will respond when the case goes back before the judge in South Carolina.
The ruling by the full appeals court did not go as far as the one last year by a three-judge panel which held that Marri must be released from military custody.
Only two others have been held as enemy combatants inside the United States since the September 11 attacks.
In January 2006, Jose Padilla, held for three years at the same brig in Charleston, had his case transferred to a criminal court in Miami, where he was later convicted on charges of offering his services to terrorists.
Yaser Esam Hamdi, another U.S. citizen held at the brig for two years, was deported to Saudi Arabia after the Supreme Court in 2004 upheld his right to challenge his detention.
(Editing by Kristin Roberts and John O'Callaghan)