The Supreme Court noted that Hamdi was captured on the battlefield in Afghanistan holding an AK-47. Al-Marri furthermore found that he was a Taliban soldier (entitled to combatant status) and not al Qaeda (not entitled). Padilla had also been on the battlefield but was not captured. Al-Marri decided that Padilla was also Taliban (!!) and therefore became an enemy combatant at the same time and in the same way as Hamdi. He was captured later on when he attempted to enter the US while on an al Qaeda sabotage mission, but his status was determined months earlier in Afghanistan.

Specifically the al Marri decision ignores (and finds to be wrong) the section of Padilla v Hanft that deals with the sabotage mission itself. Refering to Huber Haupt, the one German saboteur in ex parte Quirin who was a US citizen, it noted: “Like Haupt, Padilla associated with the military arm of the enemy, and with its aid, guidance, and direction entered this country bent on committing hostile acts on American soil. J.A. 22-23. Padilla thus falls within Quirin’s definition of enemy belligerent, as well as within the definition of the equivalent term accepted by the plurality in Hamdi.”

Al-Marri v Wright directly contradicts the previous quote from Padilla, but the decision still claims that its findings are consistent with Padilla. Presumably they feel it is enough to agree with the outcome while rejecting some and rewriting the rest of the reasoning.

While some may comment on al Marri’s detention and treatment, upon closer inspection Al-Marri v Wright is exclusively about the legal status of al Qaeda and the physical scope of the battlefield. It would be fairly easy for the case to be bounced back to District Court without any of the issues people typically debate having been considered let alone actually decided.

The question is whether al Marri is a civilian or whether he is an enemy combatant as a previous panel of the Fourth Circuit found in Padilla v Hanft. Although there were differences in fact between Padilla and al Marri, they did not effect the legal issues. Padilla was found to be a saboteur and therefore unlawful combatant based on Quirin in which the Supreme Court said that Milligan does not apply. Al Marri was also found to be a saboteur, but then was classified as a civilian under an ICRC interpretation of the Fourth Geneva Convention, which then led to the conclusion that Milligan must apply since it covers civilians.

The en banc panel will have to reconcile the incompatible conclusions of law in two of the Circuit’s own cases. At no point will anyone claim that the President has any power to detain real civilians where everyone agrees that Milligan would apply.