Combatant Loses Bid for Freedom

A defense attempt to free a Qatari man designated an enemy combatant in the war on terrorism was dealt a setback Monday when a federal judge ruled that his court lost jurisdiction in the case after the suspect was transferred to a U.S. Navy brig in South Carolina.

But U.S. District Judge Michael M. Mihm also described as “unseemly” the Bush administration’s abrupt designation of Ali Saleh Kahlah Al-Marri as an enemy combatant after Al-Marri -- whom the government accused of operating a terrorist “sleeper cell” -- refused to cooperate with prosecutors.

“I’m not naive enough to believe that this was just a coincidence,” the judge said.

Nevertheless, prosecutors won the first round in the case, which is like no other in the ongoing dispute between the federal courts and the executive branch of the government over Sept. 11 detainees.

Al-Marri is one of three men formally designated enemy combatants by President Bush. But because the other two are U.S. citizens, and because Al-Marri was being prosecuted in federal court before he was moved to a U.S. military brig, his case has proceeded the furthest in testing the power of the federal judiciary against the White House in deciding how far the government can go in locking up enemy combatants.

Al-Marri, 37, entered the United States on Sept. 10, 2001 -- the day before the terrorist attacks on New York and the Pentagon. He has said he came to study at Peoria’s Bradley University.

But the government maintains he was sent to the United States by Al Qaeda leaders to work as a sleeper-cell operative and help settle other foreign terrorists here.

He initially was charged with relatively minor crimes of fraud and giving false statements to the FBI. Insisting that he was innocent, Al-Marri refused to cooperate with authorities in return for a reduced sentence and was preparing for trial before Mihm.

But on June 23, just weeks before the trial was to begin, prosecutors announced that they were dismissing the charges because Bush had designated Al-Marri an enemy combatant. He was flown out of Illinois and taken to the Naval Consolidated Brig in Charleston, S.C.

Monday’s hearing was prompted by a defense motion asking that Al-Marri be freed from indefinite custody. Under administration policy, enemy combatants can be held for the duration of the war on terrorism.

Mihm ruled that because Al-Marri was no longer in his central Illinois district, his court did not have proper jurisdiction over the defendant. But he suggested that the defense could appeal his ruling or ask that the matter be transferred to the federal courts in South Carolina.

Defense lawyers said they will weigh those options and make a decision as soon as today.

The judge also was clearly irritated about how Al-Marri was abruptly transferred to South Carolina and that neither he nor the defense lawyers know for certain whether his alleged offenses occurred in Peoria or elsewhere, because the government has not said exactly why Al-Marri is an enemy combatant. If they did occur here, Mihm presumably would have jurisdiction over the matter.

Indeed, suggesting that the defense lawyers might want to appeal his ruling, Mihm said, “if the appellate court sends it back, I’d be happy to hear it.... It’s not only interesting but historic.”

He also chastised the government’s handling of Al-Marri’s abrupt transfer, noting that on June 23, a prosecutor came to his chambers and said the charges were being dropped because Bush had just designated Al-Marri an enemy combatant.

“Normally the race is to the courthouse,” the judge said. “Here the race was from the courthouse.”

Mihm said it appeared that prosecutors hoped to get Al-Marri removed from Illinois and off to South Carolina before defense lawyers could object. When the judge decided to notify the defense lawyers, the government announced it was dropping the criminal charges with prejudice, meaning the charges could not be refiled against Al-Marri.

At that point, the judge said, he had no choice but to allow Al-Marri to be turned over to military authorities.

“This occurred over a very brief period of time,” the judge said. “We were told the plane was here and ready. I don’t know whether the engines were running, but we were told he would be immediately transferred to the military.”

The judge then asked, rhetorically, “Was that seemly?”

David B. Salmons, an assistant to the solicitor general in Washington, responded that, under case law, Mihm no longer had jurisdiction over Al-Marri because he was no longer in Illinois. “The proper venue is the district where the petitioner is being held,” or South Carolina, Salmons said.

Saying the case “presents extremely important legal issues,” Lawrence S. Lustberg, a Newark, N.J., lawyer who is assisting the defense, argued that other case laws suggest the Al-Marri matter could be tried in Illinois, regardless of where he is being held.

Lustberg said the only difference would be if Al-Marri was moved outside the United States -- a move prosecutors have pledged not to make without first alerting the defense team.

“Why did they whisk Mr. Al-Marri out of this district so rapidly?” Lustberg asked, implying that it was a government effort to get around the jurisdiction of the federal courts, especially when they had a defendant who would not cooperate.

Mihm said he too wondered about the government’s motives.

“For all I know, what he allegedly did that would, if true, legally make him an enemy combatant ... didn’t even happen in this country,” the judge said. “And I’m troubled by that.”

Salmons, the government attorney, declined to discuss the case after Monday’s court proceedings.