RICHMOND, Va. (CN) – Congress gave the president the power to order the arrest and indefinite detention of civilians in the United States, including U.S. citizens, so long as the government’s allegations against them are true, the 4th Circuit ruled in a 5-4 decision.
The majority overturned an order releasing Illinois resident Ali Saleh Kahlah al-Marri from his five-year confinement in a military jail in South Carolina. The government defends his detention, claiming al-Marri associated with al-Qaida and “prepared for acts of international terrorism.” A native of Qatar, he is the only suspected terrorist being confined on the U.S. mainland.
Though the ruling is generally considered a victory for the Bush administration, a slightly different majority held that al-Marri should be able to challenge his designation as an enemy combatant. The court ruled 5-4 that – provided the government’s allegations are true – al-Marri “has not been afforded sufficient due process.”
Judges Williams, Wilkinson, Niemeyer, Traxler and Duncan upheld the president’s power to detain individuals captured in the United States under a Congressional authorization in the wake of 9/11. Judges Michael, Motz, King and Gregory dissented. Judge Traxler was the swing vote in determining that al-Marri could challenge his detention.
The 216-page opinion contained seven opinions, none of which mustered a majority. The judges offered various explanations of who might be subject to the president’s detention order and whether al-Marri should remain in custody.
Concurring Judge Diana Gibbon Motz said her colleagues who voted to deny habeas corpus had relied on “scant legal support” and resorted to “inventing new definitions of enemy combatant.” She suggested that the government funnel terrorist suspects through the criminal justice system, as it did with convicted 9/11 conspirator Zacarias Moussaoui.
Judge Wilkinson disagreed with this approach. By rejecting the notion of separation of powers, the plurality “asserts its unabashed preference for using the criminal justice system in all instances involving suspected terrorists similarly situated to al-Marri,” he wrote.
The 5-4 votes on the key issues were summarized in four brief, unsigned paragraphs at the beginning of the decision.
The court agreed to remand the case based on Traxler’s middle ground.