Which is exactly why Al-Marri and Boumediene should be consolidated.

The rehearing may ignore these strange theories and return to what you expect an appeal to do, that is to review the decision of the lower court. This may prove even more interesting.

Judge Floyd assumed that an al Qaeda member who entered the country the day before 9/11 on a mission assigned to him personally by Bin Laden to conduct sabotage could plausibly be detained as an enemy combatant in the current hostilities. What remained was to determine whether there was evidence to hold al Marri on this charge.

In the Hamdi/Rasul cases, the Supreme Court had outlined a type of proceeding that could be used by a military tribunal or US District Court operating under a Habeas petition when a person detained as an enemy combatant disputes this classification. They outlined some rules of evidence and who had what burden of proof.

The military created the CSRT panels. For this case, we can ignore them.

Judge Floyd independently followed the Supreme Court direction in Hamdi and independently created what is today the only judicially supervised version of the Combatant Status Review process. Al Marri then declined to participate and offered no evidence or testimony. The District Court entered a default judgement, that it had determined al Marri to be an enemy combatant.

This was not actually a decision about the President’s power to detain. Although the President had initially detained al Marri as an enemy combatant, as soon as the District Court began the Habeas proceeding following the outline provided in Hamdi, the District Court was then making its own independent classification. When Judge Floyd rendered his decision, al Marri was then being held because a US District court found him to be an enemy combatant, not because of any decision or inherent power of the President.

The Floyd proceeding represents the most perfect possible implementation of the Combatant Status Review process outlined in Hamdi. Unlike the military CSRT criticisms, in this case one cannot question the impartiality of the court. There is no issue about the evidence, because the detainee refused to participate and the court entered a default judgement. There was no do-over. So unless the Fourth Circuit (or SCOTUS) decides that Floyd didn’t understand Hamdi and get it right, al Marri got the best possible Combatant Status Review.

The DTA and MCA assigned jurisdiction to review military CSRTs to the DC Circuit. However, Floyd’s Federal District Court CSR is not covered yt those laws, and is still reviewed by the Fourth Circuit. Unless the en banc panel actually takes seriously the “we aren’t at war with Bin Laden because he wasn’t a Taliban” theory, the most likely outcome of the new decision will be a second opinion (compared to the DC Circuit) about the Combatant Review process created by the Supreme Court in Hamdi.

This decision may say nothing about the power (inherent or otherwise) of the President. It may say nothing about Padilla. Because al Marri defaulted, it may say nothing about Combatant Status Reviews where the detainee actually challenges his classification. However, it does provide the one opportunity for a Circuit other than DC to make a statement, however tangential, about the CSRT process as questions about CSR make their way back to the Supreme Court.