[JURIST] The US Court of Appeals for the Fourth Circuit, sitting en banc, issued a per curiam opinion [PDF] Tuesday, finding by a vote of 5-4 that if the government's allegations against Ali Saleh Kahlah al-Marri [NYT profile; Brennan Center case materials] are true, the President is empowered by Congress to hold al-Marri in a military prison without charge as an enemy combatant, under the 2001 Authorization for Use of Military Force (AUMF) [text, PDF]. The ruling overturned a prior decision [PDF; JURIST report] by the Fourth Circuit, which had held in 2007 that the military cannot seize and imprison civilians lawfully residing in the US and detain them as "enemy combatants" [JURIST news archive]. Ruling on a second issue Tuesday, five of the nine judges found that al-Marri's Fifth Amendment right to Due Process had been violated during the proceedings. Circuit Judge Traxler, the only judge to vote with the majority on both determinations, outlined the 216 page opinion and distinguished the decision from that of the Supreme Court in Hamdi v. Rumsfeld [Duke case law backgrounder; opinion text]:
If the allegations against al-Marri are true, al-Marri is a foreign national and member of al Qaeda who entered the United States with a purpose to commit additional hostile and war-like acts within our homeland, and he may therefore be detained as an enemy combatant under the AUMF. Accordingly, I would affirm the district courts order denying al-Marris motion for summary judgment on the issue of whether the President possesses the legal authority to detain al- Marri as an enemy combatant.
However, because al-Marri was present within our borders at the time our intelligence sources identified him as an enemy combatant, he is entitled to contest his designation under the burden-shifting scheme outlined in Hamdi. Under this scheme, the government may demonstrate that the balance of the competing interests weighs on the side of lessened due process protections, which al-Marri and his counsel may contest. But because the district court applied Hamdis lessened procedures to al-Marri without any additional inquiry or balancing of the respective interests, I would hold that the process al-Marri received was constitutionally insufficient, vacate the district courts order dismissing al-Marris petition, and remand for further proceedings.
Attorneys for al-Marri said that they plan to appeal to the Supreme Court the portion of the decision upholding the President's power to designate individuals seized in the US as enemy combatants. The New York Times has more. The Washington Post has additional coverage.
Al-Marri was arrested at his home in Peoria, Illinois by civilian authorities in 2001, and was indicted for other crimes. In 2003, President George W. Bush declared him an enemy combatant [CNN report] and ordered the attorney general to transfer custody of al-Marri to the defense secretary, claiming inherent authority to hold him indefinitely. Al-Marri has claimed abuse [JURIST report] while being held in a US Navy brig in Charleston, South Carolina. The Fourth Circuit's opinion comes on the same day that lawyers for another US military detainee, Omar Khadr [DOD materials; JURIST news archive], released [JURIST report] portions of a video [video; transcript] depicting a 2003 interrogation of Khadr by Canadian officials at Guantanamo Bay. The video does not show torture, but documents [text, PDF; JURIST report] released last week indicated that the Canadian government knew Khadr had been mistreated at the detention center before agents questioned him.