Mr. al-Marri was originally charged with credit card fraud, but the government dropped those charges in 2003, designating him an “enemy combatant” and transferring him to a U.S. Navy brig of the coast of South Carolina, where he has been held for five years without charge. In a split decision, the en banc court today overruled a three-judge panel, finding that if the Bush administration’s allegations against Mr. al-Marri are true, he can be held indefinitely by the military. However, Judge Traxler, the crucial fifth vote, switched to side with the other four judges on the second issue in the case: whether Mr. al-Marri has been given sufficient “due process” rights to challenge his detention. Accordingly, the court sent the Mr. al-Marri back to the district court for a hearing—giving him an opportunity to rebut the allegations against him.
Four judges disagreed with the Bush administration’s assertions, finding that “Congress has not empowered the President to subject civilians within the United States to indefinite military detention.” In an impassioned opinion, invoking the reasoning of the Supreme Court in its recent Boumediene decision, they cautioned:
Our colleagues hold that the President can order the military to seize from his home and indefinitely detain anyone in this country — including an American citizen — even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world. We cannot agree that in a broad and general statute, Congress silently authorized a detention power that so vastly exceeds all traditional bounds. No existing law permits this extraordinary exercise of executive power. Even in times of national peril, we must follow the law, lest this country cease to be a nation of laws.The Fourth Circuit’s embrace of the Bush administration’s sweeping authority serves as a poignant reminder of the president’s longest legacy. While the White House will get new tenants in just a few months, the federal bench has been stacked with lifetime appointees who will faithfully carry on President Bush’s ideology long after he has left office.