In a stunning decision, a divided panel of the Fourth Circuit has squarely rejected the Bush Administration’s view that it can detain an alien terrorist suspect lawfully in the United States as an “enemy combatant.” The case is Al-Marri v. Wright, and the opinion was authored by Judge Motz and joined by Judge Gregory. This is a very important case; I suspect the Supreme Court will take it if the Fourth Circuit doesn’t go en banc. While I’m at it, I’ll wager a guess that the Supreme Court will reverse.
Ali A-Marri is a citizen of Qatar who attended college in the U.S. in the late 1980s and early 1990s. Al-Marri then left the U.S.; he returned to the states on September 10, 2001, allegedly to attend graduate school at Bradley University. The government believes that Al-Marri is an Al-Qaeda member who is supposed to be part of the “second wave” of teror attacks following 9/11. Al-Marri was arrested in December 2001 in illinois and was charged criminally, but in 2003 President Bush signed an order declaring Al-Marri an “enemy combatant.” Since then, Al-Marri has been held as an enemy combatant.
In today’s decision, the Fourth Circuit ordered that l-Marri must be set free from military detention. After holding that Congress did not strip jurisdiction over the case in its 2005 and 2005 habeas legislation, the court held that the government does not have any statutory authority to detain Al-Marri and has no “inherent” constitutional authority to do so. According to Judge Motz, Al-Marri was not an “enemy combatant” who could be detained under the AUMF because unlike Hamdi, Al-Marri was just a suspected Al-Qaeda terrorist: he was not someone who had been connected to international hostilities like the war in Afghanistan. The court takes a very narrow view of the category “enemy combatant”; if I read the court correctly, it sees the category as basically limited to the catgeory of military opponent in battle rather than Al-Qaeda terrorist:
[U]nlike Hamdi and Padilla, al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world. See Rapp Declaration (alleging none of these facts, but instead that