86 Pages Later, Some Early Reactions to al-Marri

Admittedly, this is after a very quick read, but here are my three big reactions to the Fourth Circuit’s decision today in al-Marri (on which, unsurprisingly, Lyle and Marty beat me to the punch):

1) This is, perhaps surprisingly, not a surprise. Given the panel, and given how the oral argument went, I’m surprised only that the court didn’t strike down the MCA…

2) The jurisdictional holding is sui generis, and almost completely unhelpful to the Guantanamo cases. Everything turns on the fact that al-Marri was “awaiting” a CSRT, and so nothing in the court’s analysis seems to apply to cases where petitioners have had a CSRT, thus triggering section 7 of the MCA.

2) The holding on the merits is perhaps the most important decision in any war on terrorism case to date, or at least on par with the Supreme Court’s decisions in Hamdi and Hamdan.

Let me try to explain why:


As the story goes, the Supreme Court in June 2004 decided in Hamdi that the government had the authority to detain U.S. citizens captured “on the battlefield” in Afghanistan, but did not reach the question in Padilla whether the government also had the authority to detain U.S. citizens captured stateside.

After remand, the Fourth Circuit answered that question in the affirmative, but then the government mooted Padilla’s cert. petition by indicting him in Miami.

Al-Marri, from the get-go, has raised an important variation of the Padilla question: Does the AUMF authorize the detention of non-citizens detained within the United States, who were lawfully present at the time of their detention? Except for the citizenship, it’s the precise issue that the Court ducked in 2004, and that the government mooted in late 2005 (with the Supreme Court’s eventual sanction).

It shouldn’t take too much to see why this is a bigger and more important question than the “Hamdi” / battlefield question. Yes, there may be fewer cases of “stateside” detentions than overseas (Iraq/Bagram/Guantanamo), but it’s the stateside detentions that have always been the litmus tests for the true scope of the government’s authority as part and parcel of the war on terrorism. Moreover, whereas the Second Circuit’s December 2003 decision rejecting the government’s authority to hold Padilla relied upon the Non-Detention Act, which only applies to citizens, the Fourth Circuit’s decision today relies upon a much deeper view of the constitutional protections enjoyed by all citizens and non-citizens legally within the United States.

So what happens next?

There are two possibilities: The government seeks rehearing en banc, or the government goes straight to the Supreme Court. In the former context, it will be interesting to see if the government attempts to argue that al-Marri is irreconcilable with the since-mooted Padilla decision, and, separately, if they challenge the MCA holding in addition to the court’s decision on the merits.

Either way, and no matter where one comes down on the questions presented, a momentous and important day in the ever-ongoing post-9/11 legal world…

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2 Responses

  1. Curious says:

    What is your reaction to the dissent?

  2. Marty Lederman says:

    The story behind the story — why the government will lose on appeal (I think):

    http://balkin.blogspot.com/2007/06/al-marri-reactions-i-hidden-alternative.html