Al-Marri has the strongest habeas corpus claim of any of the alleged enemy combatants because he was residing peaceably in the United States when arrested, initially on criminal charges, and was detained in a jail within the United States when declared an enemy combatant. He is, as far as the public knows anyway, the only person in this situation.

The only difference between his case and that of Jose Padilla, from a legal perspective, is citizenship. Yet, none of the U.S. Supreme Court’s jurisprudence in the area has acknowledged the distinction made by the administration and Congress between aliens and citizens as relevant to constitutional rights where this is no effort underway to deport someone. Indeed, at least some of the opinions in Hamdan rejected such a distinction.

The argument in other cases that the Military Commissions Act of 2006 is not a suspension of the writ of habeas corpus, may now mean that that the Justice Department it will have to argue that the writ, at least to the extent irreducibly established by the U.S. Constitution, doesn’t apply to aliens, or at least, does not apply to aliens detained as enemy combatants.

This will be a tough case to make. Alien criminal defendants who are convicted in state courts routinely file habeas corpus petitions which are not denied on account of citizenship.

In the only case where enemy combatants have been detained within the United States as such, during World War II when German soldiers entered into the United States, the U.S. Supreme Court found habeas corpus jurisdiction and denied the claim on the merits, IIRC, and did not make a distinction between the U.S. citizen among those soldiers, and the soldiers who were not U.S. citizens.

Also, while it shouldn’t matter, I can’t help but think that the 4th Circuit may be less charitable towards the government in this case than it was in the Padilla case. It felt quite ill used when Padilla was transferred to criminal custody after its Padilla opinion was issued, and make that fact very public, even though the U.S. Supreme Court held that the transfer to criminal custody was valid.

If the 4th Circuit rules that the Military Commission Act’s jurisdiction stripping provision is unconstitutional because it has the effect of eliminating the writ of habeas corpus and the government has conceded that the Act is not a suspension, the 4th Circuit might (based on the still binding precedent of Padilla’s case), still rule in the governments favor on the merits, but the damage would be done to some extent. Because, a 4th Circuit determination that the jurisdiction stripping provision is unconstitutional in Al-Marri’s case would then cast a cloud of doubt over the validity of that jurisdiction stripping provisions in all cases.