UPDATE 5:45 p.m.  The decision by the Fourth Circuit Court apparently is now headed for the Supreme Court. Lawyers for the detainee involved in the case said that, while still studying the ruling, they do expect to ask the Supreme Court to review the part of the decision upholding presidential detention power over those seized inside the U.S.  The Justice Department, although failing to get the case dismissed, seemed to indicate that it does not intend to challenge that part of the ruling in the Supreme Court. In a statement, a Department spokesman praised the overall decision, and said, as to the ruling’s assurance of a new chance to challenge the basis for the detention, that it “will respond to Mr. Al-Marri’s contentions on remand.”

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A federal appeals court on Tuesday upheld President Bush’s power to order the detention of a foreign student living in the U.S., based on claims he had terrorist links, but also ruled that the detainee must be given a new chance to challenge in court his designation as an “enemy combatant” — the basis for holding him.

The en banc 4th U.S. Circuit Court in Richmond, VA, split 5-4 on each of the two points in the case, Al-Marri v. Pucciarelli (06-6427), with Circuit Judge William B. Traxler, Jr., voting to make a majority on each. There are seven separate opinions, totaling 216 pages; they are available here.  (Circuit Judge Dennis W. Shedd did not take part.)

Because Judge Traxler’s vote was necessary to make a majority on each part of the ruling, and because he did not sign onto any opinion written by other judges on either part, his 35 pages of rationale generally will be considered the controlling justification for the entire decision.  The four judges who voted against presidential authority to order the detention said they would not have ruled on the detainee’s right to challenge his detention, but they nevertheless voted to support Traxler on that point “to give practical effect” to an order to govern further developments in District Court.

On presidential authority, the Court ruled that Congress, in enacting the 9/11 Resolution soon after the 2001 terrorist attacks, had given President Bush the power “to detain enemy combatants in the war against al Qaeda, including belligerents who enter our country for the purpose of committing hostile and war-like acts such as those carried out by the al Qaeda operatives on 9/11,” according to Judge Traxler’s opinion.

Because the 9/11 Resolution was a sufficient basis for the President to act, Judge Traxler said, it was not necessary to rule on the Bush Administration’s claim that the President had “inherent” constitutional authority, without action by Congress, to detain such a “belligerent.”

That part of the ruling apparently would allow the President to detain a U.S. citizen captured in the U.S., if that individual was believed to have been an agent of a foreign terrorist network who was in the U.S. and aiming to engage in war-like acts.  This marked the second time that the Fourth Circuit has upheld presidential detention power over a suspect taken into custody in the U.S. — the first was Jose Padilla, a U.S. citizen believed to be an agent of the Taliban when it controlled the government of Afghanistan, who was taken into custody in Chicago. The Supreme Court, however, has never ruled on presidential authority to detain, without criminal charges, anyone — citizen or not — captured inside the U.S. as a terrorist suspect.  The Justices in 2004 upheld detention power over a U.S. citizen captured on a foreign battlefield. 

In his separate opinion Monday, Judge Traxler did not accept as true the government’s claim that Ali Saleh Kahlah Al-Marri is an agent of the al Qaeda terrorist network. That claim is to be tested on the return of the case to a U.S. District Court in South Carolina, where Al-Marri is being held in a U.S. Navy brig in Charleston — the only person now being detained by the U.S. military inside the U.S.  Al-Marri, a Qatari national, was captured in Peoria, Ill., where he was a college student, after returning to the U.S.

The Traxler opinion concluded that Al-Marri is entitled to “further evidentiary proceedings on the issue” of whether he “is, in fact, an enemy combatant subject to military detention.”

The general rule, the judge said, is that “Al-Marri would be entitled to the normal due process protections available to all within this country,” but that general rule can be offset if the government first shows that it is outweighed by national security and that it would be too burdensome for the government to have to produce stronger evidence to justify a detention, in response to a detainee’s demands for more information from the government.

“In my opinion,” the judge wrote, “due process demands more procedural safeguards than those provided to al-Marri in the [District Court] habeas proceedings.”  He rejected the District Court judge’s ruling in Al-Marri’s case that the standard of due process was laid down by the Supreme Court in its 2004 decision in Hamdi v. Rumsfeld — a case involving a detainee captured on an overseas battlefield.

In Hamdi, the Supreme Court said that a review of a challenged detention should provide a notice of the basis for holding the individual, and an opportunity to challenge that basis, but that there could be some presumption in favor of the government’s evidence and hearsay evidence might be used on the theory that it was the “most reliable evidence” that was available.  Once the government had offered “credible evidence,” the Hamdi ruling said, the detainee would then have to rebut the evidence with “more persuasive evidence.” That approach, the Hamdi Court said, would be sufficient to head off the risk of an erroneous detention.

In Al-Marri’s case, the District judge said that standard had been met by a hearsay statement given by Jeffrey N. Rapp, the head of an intelligence task force on terrorism. That declaration identified Al-Marri as a member of al Qaeda who had been trained in Afghanistan and was sent to the U.S. the day before the 9/11 attacks as “a sleeper agent.”

Judge Traxler concluded that the Rapp declaration should not have been accepted as “‘the most reliable available evidence from the government’ without any inquiry into whether the provision of nonhearsay evidence would unduly burden the government.”  The judge also erred, Traxler added, “in failing to then weigh the competing interests” of Al-Marri and the government “in light of the factual allegations and burdens placed” before the judge.

The Supreme Court in Hamdi, Traxler’s opinion said, did not lay down a due process standard for use in every enemy-combatant case, regardless of the circumstances in each. That approach, he said, “would allow the government to seize and militarily detain any person (including American citizens within this country) and support such military detention solely with a hearsay declaration of a government official who has no first-hand information about the detainee — regardless of whether more reliable evidence is readily available or whether the presentation of such evidence would impose any burden upon the government or interfere at all with its war or national security efforts.” (emphasis in original)

While Judge Traxler said that hearsay evidence might in some cases be the most reliable evidence the government has at hand, he said the Supreme Court’s acceptance of such evidence in Hamdi was in the setting of a detainee captured on an active battlefield overseas.

When the Al-Marri case returns to the District Court, Traxler said, the fact that he was seized inside the U.S. — in Peoria, Ill. — would not bar his designation as an enemy combatant subject to detention, and would not bar some relaxation of normal procedural safeguards.  But the fact of capture inside the U.S. “is not irrelevant to the task of weighing the interests at stake and balancing the risks involved to determine what due process protections are due him.”

The fact of capture inside the U.S., the judge commented, raised for him concern about “the dangers of detention and imprisonment without compliance with criminal process safeguards, dangers that are even greater when the military detains persons inside the borders of the United States.”

He added: “In my view, the risk of erroneously detaining a civilian or citizen in this country as an enemy combatant is much greater inside the United States than in the very different context addressed by the Supreme Court in Hamdi, i.e., a conventional battlefield within the borders of a foreign country in which we are fighting our enemies.”

On the other side of the balance, the judge noted the government’s interest in detaining those who “actually pose an immediate threat to the national security of the United States during ongoing international conflict” and ensuring that they do not return to the battle. Another factor, the judge said, was the burdens on the government in providing more elaborate procedural guarantees.

But, the opinion went on, the government had offered only the Rapp declaration, without attempting to show that the hearsay evidence is the best available or that it could not provide additional protection to make sure those detained are not innocent.

Al-Marri, Traxler noted, had sought to conduct “discovery” proceedings to obtain additional evidence from civilian agencies to try to offset the Rapp statement.  “I believe,” the judge wrote, that “the government should be required to demonstrate to the District Court why this is not the case and why, in balancing the liberty interest of the detainee and the heightened risk of erroneous deprivation, the Rapp Declaration should be accepted as the most reliable available evidence the government can produce without undue burden or serious jeopardy to either its war efforts or its efforts to ensure the national security of this nation.”

Judge Traxler’s opinion was not signed by any other judge, although four others agreed that it should control the remand of the case to District Court.

In the other six opinions:

** Circuit Judge Diana Gribbon Motz, joined by Circuit Judges M. Blame Michael, Robert B. King and Roger L. Gregory, rejected the claim that the President has authority to order the indefinite detention of a civilian captured inside the U.S. Such a person, they said, could only be tried on criminal charges.

** Judge Gregory wrote separately to argue for a more explicit assurance of procedural safeguards for those captured inside the U.S. and facing possible detention.

** Chief Judge Karen J. Williams wrote in concurrence and dissent, joined by Circuit Judge Allyson M. Duncan, arguing for full presidential detention power over someone facing the allegations the government made against Al-Marri, and contending that Al-Marri’s habeas challenge shoujld be dismissed outright.  Judge Williams said Al-Marri had himself “short-circuited” the process in District Court.

** Circuit Judge J. Harvie Wilkinson, Jr., in the longest opinion in the group (78 pages), arguing in favor of greater recognition by the courts of “the actual nature of modern warfare” and describing the opinions of Judges Motz and Trazler as having misperceived “the nature of our present danger.”

** Circuit Judge Paul V. Niemeyer, relying on his interpretation of the Supreme Court’s June 12 decision in Boumediene v. Bush, concluded that Al-Marri had received all of the procedural safeguards he was entitled to have under that decision.

** Circuit Judge Duncan, in an opinion of less than a full page, added a few comments that did not differ from the views of Judges Williams, Wilkinson and Niemeyer.

The Fourth Circuit now has 11 active Circuit Judges. Judge Shedd did not take part, without giving a reason. Judge G. Steven Agee only became an official member of the Court on July 1; the case had been argued Oct. 31.

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