The New York Times, June 24, 2003

“Bush Declares Student an Enemy Combatant”

By ERIC LICHTBLAU

President Bush made a surprise decision today to remove a Qatari student

from the criminal justice system and declare him an enemy combatant after

prosecutors said new evidence linked him to another round of terrorist

plots by Al Qaeda after Sept. 11.

The student, Ali Saleh Kahlah al-Marri, 37, had been held in civilian

custody since late 2001, first as a material witness in connection with the

Sept. 11 attacks and later on charges of lying to the F.B.I. and credit

card fraud.

Because he was declared an enemy combatant, Mr. Marri was moved from a

prison in Illinois to a military brig in South Carolina, according to

Lawrence S. Lustberg, who represented him in the criminal case. As an enemy

combatant, Mr. Marri can be held indefinitely, and he has no access to a

lawyer unless the military decides to bring charges, officials said.

The case represents the first time that the administration is shifting

custody of someone charged by criminal prosecutors to the military as an

enemy combatant, administration officials said.

Neither of the other two men publicly identified as enemy combatants, Yaser

Esam Hamdi, who was captured in fighting in Afghanistan, and Jose Padilla,

suspected in a scheme to set off a "dirty bomb," had faced criminal charges

beforehand. Both are Americans.

The administration said national security interests drove the decision to

turn over Mr. Marri to military custody. They would not elaborate.

Critics of the detention policies said the move added to the confusion over

using the array of military, criminal and civil measures against people

considered terrorism suspects.

"To just pluck someone from the criminal justice system and remove them

from any of the protections of the legal system to me suggests a very

troubling disregard for the rule of law," said Jamie Fellner, the United

States director for Human Rights Watch.

Mr. Lustberg, a private lawyer in Newark, said he planned to seek a

reversal of the decision by filing a writ of habeas corpus in the federal

court system in a few days.

Mr. Marri had been scheduled to go to trial next month in federal court in

Illinois on the criminal charges pending against him, and Mr. Lustberg

said, "We thought he had a powerful defense."

Mr. Marri had apparently planned to argue that the charge he had lied to

F.B.I. agents in interviews in late 2001 about his travels in the United

States was based on a misunderstanding, and Mr. Lustberg said that notes

from the bureau agents could bear that out.

Legal observers surmised that classifying Mr. Marri as an enemy combatant

might have been driven by concerns about being forced to expose

intelligence sources in open court. That issue has complicated the case

against Zacarias Moussaoui, who is accused of participating in the Sept. 11

conspiracy.

Justice Department officials said the decision to remove Mr. Marri from the

criminal system was not based on any concern about the strength of the case

against him.

"We had no obstacles in pursuing that case," Alice Fisher, a deputy

assistant attorney general in the criminal division of the Justice

Department, said at a briefing.

Mr. Marri arrived here on Sept. 10, 2001, on a student visa to pursue

graduate studies at Bradley University in Peoria, Ill. The Federal Bureau

of Investigation questioned him in October 2001 about possible links to

terrorism.

Justice Department officials said new evidence uncovered in the last

several months, after criminal charges had been brought against Mr. Marri,

provided further links to overseas operatives of Al Qaeda.

The officials said people in American custody indicated that Mr. Marri had

visited a Qaeda training camp in Afghanistan, met with Osama bin Laden and

pledged support for Al Qaeda's cause. He was assigned to help "settle"

operatives for follow-up attacks after Sept. 11, officials said.

They added that Mr. Marri's effort to call a financier for Al Qaeda by

using a calling card account also used by Mohammed Atta, ringleader of the

Sept. 11 attacks, further corroborated his role. The Justice Department

refused to identify the detainees who gave them information, but law

enforcement officials said Khalid Shaikh Mohammed, a senior leader of Al

Qaeda captured in March in Pakistan, was a source.

At the F.B.I., the assistant director for counterterrorism, Larry A.

Mefford, said there was no evidence that Mr. Marri was involved in the

Sept. 11 attacks or knew about them beforehand. But, Mr. Mefford added,

"Clearly, we think he's very important."

Mr. Lustberg, a prominent civil liberties lawyer, said he had never heard

some of the allegations that Justice Department officials were making today

against his client.

"It's either brand new," he said, "or it was withheld from us. The whole

thing is really puzzling to me."

Frank W. Dunham Jr., a standby lawyer for Mr. Moussaoui -- who is

representing himself and who has also been considered for enemy combatant

status -- said he was concerned that administration officials were abusing

the judicial process by failing to maintain a separation between the

military and civilian systems.

"You shouldn't be allowed to switch tracks like they're doing," Mr. Dunham

said in an interview. "That's how you get into the abuse of threatening

criminal defendants, suggesting that 'if you don't pleaded guilty to this

charge or that charge, we're going to declare you an enemy combatant and

lock you up forever.' "

Elisa C. Massimino, director of the Washington office of the Lawyers

Committee for Human Rights, said the Bush administration had made it

difficult for the public to tell why someone like Mr. Marri was declared an

enemy combatant while the administration used the criminal system to

convict someone like Iyman Faris, a truck driver from Ohio who admitted

last week that he was involved in a conspiracy by Al Qaeda to destroy the

Brooklyn Bridge.

"It really looks like a situation where they make the rules up as they go

along," Ms. Massimino said.

Justice Department and military officials said that each situation was

evaluated on the merits and that they could not set forth a broad policy on

who is considered an enemy combatant.

"There's no bright line," Ms. Fisher said.