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Tuesday, July 15, 2008

The En Banc Fourth Circuit Decides al-Marri, Sort Of...

I suspect very few people will make it all the way through the en banc Fourth Circuit's 216 pages of opinions handed down today in al-Marri (who is the one non-citizen held as an "enemy combatant" in the United States), so here's the short, short version:

One 5-4 majority held that the AUMF authorizes al-Marri's detention. But Judge Traxler, who was in the majority on the authorization question, joined the four dissenters from that holding in concluding that al-Marri received constitutionally insufficient process to challege the determination that he is an "enemy combatant." Importantly, Judge Traxler's 36-page opinion (which probably controls on this point) concludes that the Supreme Court's analysis in Hamdi does not control for individuals captured and held within the United States, and that more process is required.

There is every reason to suspect that this case is headed to the Supreme Court, and that al-Marri will seek certiorari on the first of the en banc court's holdings (i.e., that the AUMF authorizes his detention if he is who the government says he is). But I wonder what the impact will be of Judge Traxler's conclusion (along with Judges Michael, Motz, King, and Gregory) that al-Marri received constitutionally inadequate process (and that more process than that required by the Hamdi plurality is warranted)?  Might that holding mitigate -- at least to some degree -- the significance of the Supreme Court hearing al-Marri's case now, as opposed to after remand?

I still happen to think that the dissenters on the authority issue have the better of the argument, and I'd still prefer to see that issue go to the Supreme Court sooner rather than later. Still, for a majority of the en banc Fourth Circuit to express the degree of skepticism concerning the evidence marshaled to date against al-Marri is immensely significant in its own right.

Posted by Steve Vladeck on July 15, 2008 at 02:53 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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"the degree of skepticism concerning the evidence marshaled to date"
The government delivered what the court asked for that court deemed it to be adequate. A different court now wants more, and so the government will now provide more. In any case involving intelligence, the government will never present more information than is requested. The majority did not express skepticism for the evidence marshaled to date, but simply declared that it was not sufficient to meet their standards for process.

Posted by: HowardGilbert | Jul 15, 2008 6:52:25 PM

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