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 "Al- Marri engaged in conduct in preparation for acts of international terrorism intended to cause injury or adverse effects on the United States").

In place of the "classic wartime detention" that the Government argued justified Hamdi's detention as an enemy combatant, or the "classic battlefield" detention it maintained justified Padilla's, here the Government argues that al-Marri's seizure and indefinite military detention in this country are justified "because he engaged in, and continues to pose a very real threat of carrying out, . . . acts of international terrorism."

According to the Fourth Circuit, this left Al-Marri as a "civilian," and thus entitled to the Due Process protections of anyone lawfully in the United States. In other words, the AUMF just doesn't reach so far as to permit the military to detain a civilian terrorist suspect in the U.S. like Al-Marri.

  The Court next rejects the government's claim that the President has inherent authority to detain Al-Qaeda suspects. In language that David Addington isn't going to like, Judge Motz takes a very different view of the President's inherent powers:

[A]bsent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President the power to exercise military authority over civilians within the United States. The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention. Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them "enemy combatants."

To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them "enemy combatants," would have disastrous consequences for the Constitution — and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power — were a court to recognize it — that could lead all our laws "to go unexecuted, and the government itself to go to pieces." We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.

  My prediction: I tend to doubt this decision will stand. My very tentative guess is that either the en banc Fourth Circuit or the Supreme Court will reverse, holding that the AUMF is broad enough to authorize an Al-Qaeda suspect like Al-Marri and therefore the detention is authorized by statute.

  Finally, a note to readers: This is a long and complex decision that I have blogged very quickly in light of its importance. If I've missed something, or have a factual error, please e-mail me and I will correct the error.