Since the Supreme Court’s decision in Hamdi v. Rumsfeld on June 28, 2004, a question has lingered over the President’s authority to hold war-on-terrorism detainees who are captured inside the U.S., not in a foreign battle zone. The issue did not get finally resolved in the highly visible case of Jose Padilla because the government shifted him to a criminal trial court before the Supreme Court could rule. It is now unfolding in the Fourth Circuit Court, in the case of Al-Marri v. Wright (Circuit docket 06-7427). But, on Monday, the Justice Department sought to turn that case into another test of Congress’ power to strip the federal courts of authority to hear habeas challenges to detention, even as Al-Marri’s lawyers filed their opening brief on the merits.

UPDATE Friday, Nov. 17: The Fourth Circuit Court has moved up the briefing schedule on the government’s motion to dismiss the case under the new Military Commissions Act of 2006. The response to the motion is now due Dec. 12, with the government’s reply due on Dec. 29, the Circuit Court clerk told lawyers in the case on Wednesday.

Lawyers for Ali Saleh Kahlah Al-Marri, a citizen of Qatar who was arrested almost five years ago at his home in Peoria, Ill., while he was a student at Bradley University, urged the Fourth Circuit Court on Monday to deny the President the authority to detain him as an “enemy combatant.” Relying on the Civil War era case of Ex parte Milligan, the lawyers argued that “the Constitution prohibits the military imprisonment of civilians arrested in the United States and outside an active battlefield.” The brief can be found here.

The Al-Marri case has the potential for confining the President’s detention authority to the situation that was explicitly before the Court in 2004 in Hamdi v. Rumsfeld, one of the Court’s first rulings on war-on-terrorism issues. The Court there ruled that the President had the power to detain combatants “in the narrow circumstances alleged in this case” — that is, an overseas capture.in a field of combat of forces hostile to the U.S.

But, the Justice Department, in a filing also submitted on Monday, argued that the Fourth Circuit no longer has any authority to decide Al-Marri’s case, because it is a habeas challenge and Congress in the new Military Commissions Act of 2006 stripped the federal courts of all authority to rule on detainees’ habeas cases. The case thus should be dismissed, the government argued in the filing, found here. The Department said that the two sides had agreed on a briefing schedule on this motion, with Al-Marri’s response due Jan. 5 and the government’s reply Jan. 17. (The Circuit Court has tentatively set the week of Jan. 31-Feb. 3 to hear the case.)

Al-Marri is not a U.S. citizen, as Jose Padilla was, so the case is different to that extent. But, like Padilla, Al-Marri was taken prisoner inside the U.S., initially as a “material witness” in the government’s probe of the Sept. 11, 2001, terrorist attacks. Al-Marri was charged with seven criminal counts, ranging from illegal possession of a credit card to making false statements. Just before a hearing on pre-trial motions by the defense, the government sought dismissal of the criminal charges because President Bush had designated Al-Marri an “enemy combatant.”

He was then shipped to the Navy Brig in Hanahan, S.C., in February 2002. He is still there. His habeas challenge to his designation and detention as an “enemy combatant” has been pending, in one or another court, since July 2003. A District Court ultimately ruled that the President had the authority, based upon allegations by a terrorism task force official. Defense lawyers contend that Al-Marri has not been given a full opportunity to challenge that report, or to force the government to back it up with further evidence justifying his designation and detention.

Thus, his merits brief, in addition to contesting Presidential authority over him under the Constitution and the Patriot Act, contends that even if the President has the authority, it cannot be upheld based on “a multiple-hearsay declaration from a government bureaucrat, and without affording the detainne an evidentiary hearing.” At such a hearing, the brief argues, his attorneys should have “the opportunity to confront and cross-examine the government’s witnesses and to otherwise show that the detention rests on information gained through torture.” The brief suggests that government allegations against Al-Marri “appear to be premised upon statements made by Khalid Shaikh Mohammed,” the alleged master-mind of the Sept. 11 attacks, who has been tortured, according to published accounts.

In the government’s motion to dismiss, it argues that the Military Commissions Act “divests this Court and the district court of jurisdiction over Al-Marri’s habeas petition.” The court-stripping provisions, it says, “apply to ‘all cases, without exception,’” relating to any aspect of detention of any alien detained by the U.S. since Sept. 11, 2001. Al-Marri is such an alien, it argues, because he has been designated an “enemy combatant” by the President and detained based on that declaration.

Once the habeas case is dismissed, the Justice Department filing says, the Pentagon will have a military status tribunal review his continued detention. If it rules that he must continue to be held, the brief added, he could make a limited challenge to that ruling in the D.C. Circuit Court under the provision of the Detainee Treatment Act of 2005.