Al-Marri is the third person held in the United States under military authority as an “enemy combatant.” Human Rights Watch maintains that there should be a strong presumption that anyone arrested in the United States, far from any battlefield, be granted the full legal protections of the criminal justice system – including the right to counsel and not to be held without charge.

Human Rights Watch disputes the government's contention that international humanitarian law, commonly referred to as the laws of war, permits the president to unilaterally designate al-Marri an "enemy combatant." The United States cannot declare a criminal suspect, including a suspected member of al-Qaeda, an enemy combatant, except where there has been direct participation in an international armed conflict. International humanitarian law is inapplicable outside areas of armed conflict and where there is no direct connection to an armed conflict. Instead, the protections of international human rights law apply. In the case of a person detained in the United States, the protections of U.S. constitutional law apply as well. These protections include the rights to be formally charged and permitted access to counsel.

“Rather than afford al-Marri basic due process and other constitutional guarantees, the Bush administration has circumvented these rights by unilaterally designating him an enemy combatant,” said Patten. “The government is claiming a virtually unlimited power to deprive people of their liberty and hold them incommunicado based only on the president’s say-so.”