The divided panel held that the "President lacks power to order the military to seize and indefinitely detain al -Marri. If the Government accurately describes al-Marri’ s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian." Hence, the panel suggested that the government try him in the civil justice system rather than holding him indefinitely.
District Judge Hudson, sitting by designation, dissented:
I believe the district court correctly concluded President had the authority to detain al-Marri as combatant or belligerent. Although al-Marri was not engaged in armed conflict with U.S. forces, he is stealth warrior used by al Qaeda to perpetrate terrorist against the United States. Al-Marri’s detention is under the AUMF “to prevent any future acts of international terrorism against the United States.” AUMF § 2(a). setting aside the amorphous distinction between combatant” and an “enemy belligerent,” there is little evidence that al-Marri was present in the United States and further the hostile and subversive activities organization responsible for the terrorist attacks that September 11, 2001.
I'll bet anyone $100 that this case will be en banced. At least the old Fourth Circuit would have. Considering that Dubya has five vacant seats he has not filled--who knows for sure. However, I'd guess that Judges Wilkins, Wilkinson, Niemeyer, Weidner, Traxler, Williams, Shedd and maybe Duncan will want to take a second look at this. The panel opinion was written by Judge Motz and joined by Judge Gregory--the Court's two most liberal members. This opinion is also Motz' audtion for the Supreme Court in case Hillary or a Democrat wins the White House.
That's not to say Judge Motz got this one wrong. In Hamdi, the Supreme Court addressed "whether the Executive has the authority to detain citizens who qualify as 'enemy combatants'" (i.e., individuals who were part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States in Afghanistan). It answered the question in the affirmative. The purpose of the detention of enemy combatants, it has always been argued, is to prevent their return to the battlefield. The government has obviously widened (or has it?) its definition of battlefield and asserts that terrorists captured within the U.S. (citizen or not) can be held indefinitely as enemy combatants. This invests the Executive with a massive amount of power and should give us pause so long as the civilian court system is operational and capable of hearing evidence against the alleged terrorists.
Al-Marri has never been on a battlefield and perhaps should be tried in the Court system.