Analysis

In Courtroom Two of the federal courthouse in Richmond, Va., on Wednesday morning at 9, ten judges of the Fourth Circuit Court take up a broad new test of the power of the President to detain terrorist suspects inside the borders of the U.S. It may involve a searching examination of what the Supreme Court actually ruled in the first of its war-on-terrorism cases, Hamdi v. Rumsfeld, in 2004. And it could see the two sides debating whether presidential authority to detain reaches anyone believed to be linked to al Qaeda, anywhere in the world — even if that individual did not directly engage in armed battlefield actions overseas against U.S. forces.

The case potentially could lead to a broader interpretation of presidential authority under the 9-11 resolution, the “Authorization for the Use of Military Forces” that Congress passed in the wake of the Sept. 11, 2001, terrorist attacks. And the government may also seek in the case to gain significant new “inherent power” to order detention under the Constitution’s presidential Article II.

Thus, the stakes will be high in the en banc hearing by the full Circuit Court of Al-Marri v. Wright (06-7427), a case that almost certainly is headed ultimately for the Supreme Court.

At first glance, it appears to be a controversy specifically over presidential power to seize and detain in military custody a non-citizen from his home in this country, because the government believed he had been trained by al Qaeda and had been sent to the U.S. — arriving the day before the Sept. 11 terrorist attacks — to engage in “war-like acts,” including chemical warfare.

Ali Saleh Kahlah Al-Marri, a Qatari national, was arrested in December 2001 at his home in Peoria, Ill., where he was attending Bradley University. He was in the country legally. The arrest was part of the federal investigation of the 9/11 attacks. He was initially held on civilian criminal charges, but those were dropped and he was shifted to military custody — in the U.S. Navy brig in Charleston, S.C. — in June 2003 after President Bush declared him to be an “enemy combatant.” He has been there since, and has not been charged with any crimes. Al-Marri is the only remaining war-on-terrorism suspect being held inside the U.S.

A three-judge panel of the Fourth Circuit, in a 2-1 decision on June 11, ruled that Al-Marri could not be designated an “enemy combatant,” because he was a civilian who had never taken up arms on the battlefield against the U.S., and as an alien lawfully living in the U.S. had sufficient ties to protect him from being seized and held by the military. The government was ordered to release Al-Marri from military custody, and either to release him, charge him with crime in civilian court, seek to deport him, or hold him for a limited period during a probe of terrorism.

That rulng was vacated when the full Circuit Court granted a rehearing on Aug. 22. In seeking rehearing, the Bush Administration accused the three-judge panel of radically limiting presidential power. It also made a series of arguments indicating that it will seek to use the case to get a broader meaning of the 2001 Authorization for the Use of Military Forces, so that it is not limited to detention of those who engaged in armed military conflict against the U.,S. And it also has advanced a backup argument that seizure and military detention of Al-Marri was within the President’s “inherent” constitutional powers, even without congressional authorization. (So far, no court has accepted an “inherent power” argument in a detention case.)

The Supreme Court’s decision in Hamdi, authorizing detention of a U.S. citizen, is at issue in the Fourth Circuit case because the three-judge panel said that decision limited detention powers solely to those who fought with military forces in Afghanistan. Al-Marri’s lawyers defend that reading of Hamdi. But the government argues that the decision was not so limited, and that the Court mentioned the overseas battlefield role only to describe the individual involved, Yaser Esam Hamdi. The government notes that the Court said it would be up to lower courts to define who could be classified as an “enemy combatant.”

The government also goes further, arguing that the 2001 AUMF should be read not only to authorize detention of those who fought in combat abroad, in a foreign government’s military forces, but also applies to any “organization or person” who had any ties to Al Qaeda, and is found in the U.S. or anywhere in the world. An “al Qaeda fighter,” the government contends, is by definition an “enemy combatant.”

One interesting facet of the Fourth Circuit’s rehearing is that the two sides may engage in a new dispute over the meaning of a Fourth Circuit ruling that upheld the detention of another U.S. citizen who was captured inside the U.S., Jose Padilla That decision, in Padilla v. Hanft (2005) was on its way to the Supreme Court when the government took Padilla out of custody and prosecuted him (successfully) in civilian court — a maneuver that both the Circuit Court and the Supreme Court regarded with skepticism.

In Padilla, the Fourth Circuit (according to how the ruling was read by the panel majority in Al-Marri’s case) upheld Jose Padilla’s detention only because he, like Yaser Hamdi, had fought in battle for a foreign military service before returning to the U.S., where he was seized. Al-Marri’s lawyers read it that way, too. The government, however, interprets the Padilla ruling to authorize detention of anyone affiliated with al-Qaeda, without any battlefield conduct in his background. (That is what the dissenting judge on the Al-Marri panel concluded, but the majority disagreed.)

The en banc Fourth Circuit, however, is free to depart from the Padilla decision, because that was a panel ruling only, not binding on the en banc Court. Its meaning, of course, is directly before the full Court, because it was discussed in the Al-Marri panel decision, and has been at issue between the two sides on rehearing. Thus, the rehearing has the potential for re-defining the scope of presidential power to detain citizens as well as legal aliens like Al-Marri.

If the ten-judge Court were to split 5-5, the effect would be to affirm an August 2006 ruling by U.S. District Judge Henry F. Floyd in Charleston, S.C., dismissing Al-Marri’s habeas challenge to his detention. Judge Floyd concluded that Al-Marri had been properly designated as an “enemy combatant” subject to detention.

There is no timetable for the full Circuit Court to rule, but that Court has a reputation for acting with dispatch. The loser, on either side, seems almost certain to take it on to the Supreme Court.