FOURTH CIRCUIT REBUKES ADMINISTRATION ON ENEMY COMBATANTS

[Posted June 11, 2007 ]  The Fourth Circuit today hands down a massive (86 pages) opinion in Al-Marri v. Wright, implicating the Authorization to Use Military Force passed by Congress.  A majority of the panel votes to grant Al-Marri’s petition for a writ of habeas corpus; the majority opinion is written by Judge Motz, joined by Judge Gregory.  US District Judge Hudson, sitting by designation, dissents, maintaining that the indefinite detention of Al-Marri is consistent with the Congressional authorization and the Constitution.

Al-Marri is a resident alien (here on a student visa) who was taken from his home in Illinois by military authorities, but he has never been charged with a crime.  Today’s ruling means that the government must release him or turn him over to civilian law enforcement authorities for prosecution.

Judge Motz’s opinion contains rhetoric that will hearten civil liberties advocates and delight President Bush’s opponents.  She ends the preliminary statement  with this language:  “[I]n the United States , the military cannot seize and imprison civilians — let alone imprison them indefinitely.”  She warns of “disastrous consequences for the Constitution — and the country” if the Administration’s position is validated.  She also concludes that in this matter, “the President claims power that far exceeds that granted him by the Constitution.”

After the 77-page majority poinion, Judge Hudson’s nine-page dissent focuses on the specific grants of power to the President in the AUMF.  He also contends tht Al-Marri “has received all due process entitlements” consistent with the court’s precedents.

In case it isn’t obvious, the answer is yes; the government also has other key options.  It can appeal onward to the Supreme Court, or it can petition the full Fourth Circuit for an en banc rehearing.  I believe the latter is the likeliest course for now. 



Update:  The Fourth Circuit granted an en banc rehearing in this case, which rehearing was held on November 2, 2007.  I expect a decision in early 2008.