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Los Angeles Times

July 29, 2003 Tuesday Home Edition

SECTION: Main News; Part 1; Page 8; National Desk

LENGTH: 953 words

HEADLINE: THE NATION;

Combatant Loses Bid for Freedom;

Court in terrorism case has no jurisdiction since the U.S. has designated

Qatari man an enemy. Judge calls government's move 'unseemly.'

BYLINE: Richard A. Serrano, Times Staff Writer

DATELINE: PEORIA, Ill.

BODY:

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.

GRAPHIC: PHOTO: IN MILITARY BRIG: Ali Saleh Kahlah Al-Marri had refused to

cooperate with prosecutors. PHOTOGRAPHER: Getty Images

LOAD-DATE: July 29, 2003

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