Former Attorney General Janet Reno and seven other former Justice Department officials filed court papers Monday arguing that the Bush administration is setting a dangerous precedent by trying a suspected terrorist outside the court system.
It was the first time that Reno, attorney general in the Clinton administration, has spoken out against the administration's policies on terrorism detainees, underscoring how contentious the court fight over the nation's new military commissions law has become. Former attorneys general rarely file court papers challenging administration policy.
Suspected al-Qaida sleeper agent Ali Saleh Kahlah al-Marri is the only detainee being held in the United States.
The former prosecutors challenged the Justice Department's right to bring al-Marri before a military commission.
A citizen of Qatar, he was arrested in 2001 while studying in the United States. He had faced criminal charges until authorities designated him an enemy combatant and ordered him held at a naval base in South Carolina.
The Justice Department said in court papers last week that a new anti-terrorism law strips detainees such as al-Marri of the right to challenge their imprisonment in court.
"The government is essentially asserting the right to hold putative enemy combatants arrested in the United States indefinitely whenever it decides not to prosecute those people criminally - perhaps because it would be too difficult to obtain a conviction, perhaps because a motion to suppress evidence would raise embarrassing facts about the government's conduct, or perhaps for other reasons," the former Justice Department officials said.
Some of the eight attorneys named in the document are now in private practice and represent detainees at the military base in Guantanamo Bay, Cuba. Most served under President Clinton, though the list includes former U.S. Attorneys W. Thomas Dillard and Anton R. Valukas, who served under President Reagan.
"The existing criminal justice system is more than up to the task of prosecuting and bringing to justice those who plan or attempt terrorist acts within the United States - without sacrificing any of the rights and protections that have been the hallmarks of the American legal system for more than 200 years," the attorneys wrote.
Testing new laws
The al-Marri matter is before the 4th U.S. Circuit Court of Appeals in Richmond, Va., and is one of three appeals court cases that will help determine the scope of the new military commissions law. That law allows the CIA to use tough - but undefined - interrogation techniques and says detainees may not use civilian courts to challenge their imprisonment.
Human rights groups have challenged the law. The former prosecutors wrote that they worried the government would increasingly use the law to avoid criminal trials "and the rights associated with them, such as the defendant's right to counsel and the government's obligation to prove guilt beyond a reasonable doubt."
The government was standing behind its position, Justice Department spokeswoman Kathleen Blomquist said in a statement Monday night.
"These are complex and difficult legal issues, and while we respect the right of other legal minds to be heard on these issues, we believe we are on firm legal footing in this case as both the magistrate judge and district court concluded," Blomquist said.
Last weekend, Attorney General Alberto Gonzales defended the nation's handling of the detainees. He said they are afforded more rights than required.
"What is extraordinary, in other words, is how much - not how little - our law protects enemy combatants," he said.