New York Times

June 24, 2003

SECTION: Section A;  Page 15;  Column 1;  Foreign Desk 

THREATS AND RESPONSES: THE COURTS; 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.