Al-Marri, a citizen of Qatar legally residing in the United States, was initially arrested in his home in Peoria, Illinois, on ordinary criminal charges, then imprisoned by military authorities.
The government, which says he has ties to Al Qaeda, designated him an enemy combatant, even though it never alleged that he was in an army or carried arms on a battlefield. He was held on the basis of extremely thin hearsay evidence.
Last year, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, based in Richmond, Virginia, declared that the government could not hold al-Marri, or any other civilian, simply on the president's orders. If it wanted to prosecute him, the court ruled, it could do so in the civilian court system.
That was the right answer. Unfortunately, last week the full 4th Circuit reversed the decision, and with a tangle of difficult-to-decipher opinions, upheld the government's right to hold al-Marri indefinitely. The court ruled that al-Marri must be given greater rights to challenge his detention. But this part of the decision is weak, and he is unlikely to get the sort of procedural protections necessary to ensure that justice is done.
The implications are breathtaking. The designation "enemy combatant," which should apply only to people captured on a battlefield, can now be applied to people detained inside the United States. Even though al-Marri is not a U.S. citizen, the court's reasoning appears to apply equally to citizens.
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