I've been mulling over the Fourth Circuit's decision in Al-Marri v Wright, and I have two tentative thoughts about it. First, as a matter of policy, its reasoning can lead to results that are completely bizarre. Second, those possible results help explain why I think the U.S. Supreme Court would look at the case very differently than did the Fourth Circuit.

  To see why I think the results of Al-Marri are so puzzling, consider the following hypothetical. An Al-Qaeda cell of five individuals, all citizens of Qatar, enter the United States on student visas. The cell members' plans are to detonate a "dirty bomb" in New York City, and they rent a hotel room in Jersey City, New Jersey (just across the river) to build the dirty bomb. One of the hotel employees thinks the group is suspicious, and he calls up the local police and tells an officer that there is a group of Arab men in the hotel staying in one room and acting very secretively.

  The officer visits the hotel when the men are out one day and he requests that the hotel employee show him the room. The employee agrees; he opens the door with his key and shows the officer inside. They immediately see the bomb-making materials along with several photographs of Osama bin Laden and the 9/11 attacks taped to the walls. The officer contacts the FBI and the Department of Homeland Security. An hour later, the FBI has obtained a search warrant for the room and arrest warrants for the five men.

  The men are arrested and charged criminally. A search of the hotel room discovers all the bomb-making materials. The room search also uncovers videotapes the men made celebrating their pending attack; the men each spent a few minutes on tape describing what attacks they will execute and hoping and praying that the streets of New York will "run red with Jewish and imperialist blood."

  But there's a major problem with the criminal case: The evidence against the cell members was obtained in violation of the Fourth Amendment. Under Stoner v. Califonia, the men have a reasonable expectation of privacy in the hotel room and the hotel clerk lacks authority to consent to a law enforcement search. As a result, the evidence against the five men was obtained in violation of their Fourth Amendment rights. The evidence -- including the videotapes in which they each celebrated the attacks and confessed to their plans -- must be suppressed.

  So what should the government do? It seems to me that under the Fourth Circuit's decision in Al-Marri v. Wright, the government has two choices: it can either deport the men or else must set them free. The military cannot hold them, Al-Marri teaches; they are not "enemy combatants" but rather are merely "civilians." Sure, they're Al Qaeda cell members who entered the United States to execute another 9/11, but hey, they're still civilians with Due Process rights against detention. It would be different if the men were Taliban soldiers, Al-Marri tells us; then they would be "enemy combatants." But since they're just everyday Al Qaeda cell members instead, they can't be held under that authority. Under Al-Marri, the government has to either deport the men or set them free. (There could be a possibility of detaining the men on material witness warrants, but in this hypothetical they are the only people involved in the plot.)

  From a standpoint of policy, this result seems incredibly bizarre to me. Could it really be the case that the U.S. should have to deport or set free an Al Qaeda cell tying to blow up a nuclear bomb in the U.S.? I agree that there are often legitimate issues of proving that alleged terrorists are really terrorists; if the President declares that the five men are Al Qaeda members who want to blow up a dirty bomb, we may want to see some proof. But in this hypothetical, there is no doubt that the men are terrorists: just watch the tapes the men made before being caught in which they boast of their attacks. Could it really be the case that the most the government can do in light of the Fourth Amendment violation is to deport the men to a foreign country? I find that possibility just bizarre.

  My reaction is part of the reason why I think the Supreme Court would have a very different take on Al-Marri than the Fourth Circuit did. Compare Al-Marri to Hamdi v. Rumsfeld. Hamdi was an American citizen captured and believed to have been fighting with the Taliban; he was brought to the United States and detained there. He argued that his detention violated 18 U.S.C. 4001, which prohibits the detention of U.S. citizens "except pursuant to an Act of Congress." The Court disagreed, holding that Hamdi could be detained because the AUMF was the required Act of Congress. Hamdi then argued that his detention violated Due process; a plurality held that the detention was constitutional so long as Hamdi was given some process in the determination that he was an enemy combatant. It then remanded the case for the relevant proceedings.

  I find it pretty unlikely that a majority of the Supreme Court would say that Hamdi can be detained (if he is given the necessary hearing) but Al-Marri has to be let go. It seems plausible to me that Hamdi and Al-Marri have equivalent rights to have their cases heard in court via the writ of habeas corpus: Hamdi because he is a U.S. citizen, and Al-Marri because he was detained in the United States. But once you get past jurisdiction, isn't the case for detaining Al-Marri a lot stronger than the case for detaining Hamdi? First, Al-Marri is a non-citizen while Hamdi is a citizen. Second, Al-Marri is at the core of what the AUMF was all about, while Hamdi was more at the periphery.

  For this latter point, recall what the AUMF actually says:

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Isn't that pretty clearly directed at a member of an Al-Qaeda cell who entered the U.S. on September 10, 2001 to commit attacks -- much more directly than a United States citizen who was fighting against the Northern Alliance? That's part of the reason why i think the Supreme Court would look at this case differently than the Fourth Circuit; I suspect they would see a case like Al-Marri as being a core AUMF case, much more so than Hamdi. An alien Al Qaeda cell member who entered the U.S. to execute attacks is exactly the kind of person that Congress was trying stop with the AUMF; the case that he's an "enemy combatant" is stronger than the case for Hamdi. If anyone is an "enemy combatant," it's Al-Marri (assuming the allegations against him are true).

  That's why I think Al-Marri would be a repeat of Hamdi if it got to the Supreme Court. I imagine the Court holding that the AUMF is sufficient to detain non-citizen Al Qaeda members who entered the U.S. to execute attacks, and then moving on to what kind of Due Process hearing Al-Marri is entitled to receive to test whether he is in fact such a person. The Court would then remand for further proceedings based on whatever the Due Process standard turns out to be.

  Anyway, that's my initial take; obviously it's open to revision if there's something I'm missing, which is always a possibility. Finally, I should add that there is a possible way out of the Fourth Amendment holding described above: A court could hold that members of an Al Qaeda cell who enter the U.S. to commit attacks have no Fourth Amendment rights under United States v. Verdugo-Urquidez because they lack sufficient legitimate connections with the U.S. If so, then the cell members would not be able to invoke the Fourth Amendment to challenge the illegal hotel search, and the evidence could be admitted against them.