July 15, 2008 | National Review Online

On Combatant Detainee al-Marri, the Fourth Circuit Splits the Baby

About a year ago, I wrote here on NRO about a divided (2-1) panel of the Fourth Circuit U.S. Court of Appeals which ruled that Ali Saleh Kalah al-Marri, an alleged terrorist operative from Qatar embedded in the U.S. by al Qaeda, could not be held as an enemy combatant and had to be tried as an ordinary criminal defendant or released.

The Fourth Circuit subsequently agreed to reconsider that ruling en banc (meaning all current, non-senior judges who sit on that court).  The en banc court issued its ruling today — a jumble of seven different opinions released in four volumes and covering 220 pages.  (Couldn’t we save time and trees and just send these cases straight to Justice Kennedy?)

I haven’t had time to do more than skim through the main opinion and a bit of the others, but here is the bottom line:

(a) The en banc court, by a vote of 5-4, has reversed the original panel ruling.  That is, it has held that the president does have authority to detain as an enemy combatant a non-American (ostensibly in the U.S. lawfully on a student visa) who has been apprehended inside the United States.  As I wrote last year, one might have thought that conclusion compelled by the Supreme Court’s 2004 Hamdi decision, which held that even an American citizen captured outside the United States could be held as an enemy combatant — but the panel didn’t see it that way.

(b) Also by a vote of 5-4, the en banc court has held that the government has not afforded al-Marri sufficient due process to justify his detention.  My first take is that this holding guts the significance of the first ruling.  Across the board in these detainee cases, we have largely moved beyond the preliminary question of whether detention is legitimate in principle (it is) to the dicier matters of (1) what quantum of proof is required to justify it, and (2) what due process rights the detainee has to challenge that proof.

On a fast read, it looks like as many as four judges on the Fourth Circuit are prepared to say the process must resemble (or perhaps even be in all material respects) a full-blown criminal trial.  Five judges appear to think something less than that is called for.  I’d wish I felt comfortable stressing that al-Marri could be different because it involves someone captured inside the territorial U.S. But, alas, by asserting jurisdiction over Guantanamo Bay, Cuba, and strongly suggesting that courts have jurisdiction wherever in the world government (including our military) acts, the Supreme Court in Boumediene has already cast doubt on whether the courts think there is still a meaningful difference between, say, Baghdad and Baltimore.

I hate to be a broken record on this, but it is for Congress — not the courts — to prescribe the rules for combatant detention proceedings.  If Congress doesn’t act and act soon, the courts will make up the rules as they go along … and detainee habeas corpus will gradually become the mirror image of criminal trials — with our enemies deemed entitled to all the same protections and access to government intelligence as American citizens accused of crimes.