Mixed Result For Al-Marri In En Banc Review Ruling

There have been just two people detained as enemy combatants in the United States.

One, Jose Padilla, a U.S. citizen, was criminally prosecuted for conspiracy and his enemy combatant status was vacated before his case was fully litigated, leaving in place a bad precedent in a moot case. Padilla was ultimately convicted and sentenced to a long prison term. His case is now being appealled in the civilian courts.

The other, al-Marri, is a non-citizen legally in the country, was criminally prosecuted, after which he was removed from the criminal justice system upon being declared an enemy combatant.

The controlling 5-4 per curiam ruling in his case states:

PER CURIAM:

Ali Saleh Kahlah al-Marri filed a petition for a writ of habeas corpus challenging his military detention as an enemy combatant. After the district court denied all relief, al-Marri noted this appeal. A divided panel of this court reversed the judgment of the district court and ordered that al-Marri’s military detention cease. See Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).

Subsequently, this court vacated that judgment and considered the case en banc. The parties present two principal issues for our consideration: (1) assuming the Government’s allegations about al-Marri are true, whether Congress has empowered the President to detain al-Marri as an enemy combatant; and (2) assuming Congress has
empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, whether al-Marri has been afforded sufficient process to challenge his designation as an enemy combatant.*

Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote (Chief Judge Williams and Judges Wilkinson, Niemeyer, Traxler, and Duncan voting in the affirmative; Judges Michael, Motz, King, and Gregory voting in the negative), that, if the Government’s allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote (Judges Michael, Motz, Traxler, King, and Gregory voting in the affirmative; Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voting in the negative), that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, al-Marri has not been afforded sufficient process
to challenge his designation as an enemy combatant.

Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow.

*We deny the Government’s motion to dismiss this case for lack of jurisdiction. The Government relied on section 7 of the Military Commissions Act (MCA) of 2006, Pub. L. No. 109-366, 120 Stat. 2600, which amended the Detainee Treatment Act (DTA) of 2005, Pub. L. No. 109-148, § 1005(e)(1), 119 Stat. 2680, 2741-42. After we heard en banc argument in this case, the Supreme Court declared section 7 of the MCA unconstitutional. See Boumediene v. Bush, 553 U.S. ___, ___, slip op. at 64 (June 12, 2008). The Government now concedes that we have jurisdiction over al-Marri’s habeas petition.

Thus, Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voted with the government on both issues, while Judges Michael, Motz, King, and Gregory voted against the government on both issues. The swing vote was Judge Traxler who upheld the government's authority to detain Al-Marri if the allegations made were true, but stated that Al-Marri was not afforded sufficient due process, so that further proceedings are required.

The highly divided en banc panel of the 4th Circuit (links are available at How Appealing) reached its decision in a 5-4 vote that spawned seven opinions.

Either parties may either further appeal to the U.S. Supreme Court, which refused to grant certiorari prior to the en banc decision, or may see what happens upon remand. SCOTUS blog reports that Al-Marri plans an appeal to the U.S. Supreme Court, while the government is willing to let the ruling stand and proceed to dealing with the case on remand.

The best indication of the rights that Al-Marri will have on remand flow from swing Judge Traxler's concurring opinion. This states:

The general rule, therefore, is that al-Marri would be entitled to the normal due process protections available to all within this country, including an opportunity to confront and question witnesses against him. But, if the government can demonstrate to the satisfaction of the district court that this is impractical, outweighed by national security interests, or otherwise unduly burdensome because of the nature of the capture and the potential burdens imposed on the government to produce non-hearsay evidence and accede to discovery requests, then alternatives should be considered and employed. Given the grave national security concerns in matters such as this, and that the Rapp Declaration references not only al-Marri’s activities in this country but also those he engaged in abroad prior to his entry here, the Rapp Declaration might conceivably prove to be "the most reliable available evidence" within the meaning of Hamdi, at least as to some allegations. However, I am not satisfied to let matters stand as they are when the government has not even been required to demonstrate to the district court why it cannot or should not be required to produce, even for ex parte examination, any of the supporting evidence relied upon by Rapp to justify al-Marri’s detention. Here, the government has made no showing that "[h]earsay . . . [needs] to be accepted as the most reliable available evidence from the [g]overnment" or that the "exigencies of the circumstances . . . demand . . . [that the] enemy combatant proceeding[ ] . . . be [otherwise] tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." Hamdi, 542 U.S. at 533-34; cf. Boumediene, slip op. at 64-65 ("Practical considerations and exigent circumstances inform the definition and reach of the law’s writs, including habeas corpus. The cases and our tradition reflect this precept.")

In other words, the government will be required to present some real evidence and to justify decisions to withhold evidence on an individualized basis, but may still be permitted to withhold some evidence from Al-Marri.

This ruling, on the power of the President to treat someone outside a war zone in the continental United States as an enemy combatant is the most important of all the war on terror cases other than Padilla, because the habeas corpus rights of people within the United States have a far greater impact on the typical American or American immigrant's constitutional rights. It does not appear to overrule the troubling Padilla holding, although it does appear to narrow it.