RICHMOND, Va. (AP) – The Bush administration cannot legally detain an immigrant it believes is an Al Qaeda sleeper agent without charging him, a divided federal appeals court ruled Monday.

In the 2-1 decision, the 4th U.S. Circuit Court of Appeals panel found that the federal Military Commissions Act doesn’t strip Ali al-Marri of his constitutional rights to challenge his accusers in court. It ruled the government must allow him to be released from military detention.

It ruled the government must allow al-Marri to be released from military detention.

He is currently the only American resident held as an enemy combatant within America.

Jose Padilla, another American citizen, was held as an enemy combatant in a Navy brig for 3 1/2 years before he was hastily added to an existing case in Miami in November 2005, a few days before a U.S. Supreme Court deadline for Bush administration briefs on the question of the president’s powers to continue holding him in military prison without charge.

Mr. Al-Marri has been held in solitary confinement in the Navy brig in Charleston, S.C., since June 2003. The Qatar native has been detained since his December 2001 arrest at his home in Peoria, Ill., where he moved with his wife and five children a day before the Sept. 11, 2001, terrorist attacks to study for a master’s degree at Bradley University.

Mr. Al-Marri’s lawyers argued that the Military Commissions Act, passed last fall to establish military trials after a U.S. Supreme Court ruling, doesn’t repeal the writ of habeas corpus – defendants’ traditional right to challenge their detention.