Thoughts on Al-Marri:
I've just skimmed the Fourth Circuit's Al Marri decision, and here are some tentative thoughts about the case.

  First, it looks like Judge Traxler is the only judge to be in the majority on both issues and that his concurring opinion is (mostly) the binding one. It starts at page 64 of the slip opinion, after Judge Motz's very long concurring opinion. Traxler concludes that the AUMF authorizes Al-Marri's detention: The AUMF was designed to allow the detention of Al Qaeda suspects. As I blogged last year, I think this is correct.

  Next, Judge Traxler concldues that Al Marri hasn't received enough process under the Hamdi case. Judge Traxler applies the balancing approach of Hamdi and concludes that Al Marri should get much more process than Hamdi did. He then offers a lot of general guidance on how much process would be enough — Cf. Justice Kennedy's opinion in Boumediene — but it looks like it's a pretty complex balancing framework that leaves a lot of questions for the district court to figure out.

  Comparing the binding opinion of Judge Traxler today to the panel opinion last year, I think the Traxler approach is much more defensible than the panel opinion. I don't know if Judge Traxler's balancing is correct — the nature of the ad hoc balancing intoduced by the Hamdi case is that there is no one correct answer — but Judge Traxler's opinion seems much more consistent with the teachings of Hamdi than was the original panel decision.

  If the SG decides to petition for certiorari, I would think the Supreme Court would likely take the case. As best I can tell, the Fourth Circuit is hopelessly divided, and the judge in the center imposed a complex balancing test that's pretty unclear. It's just super messy, and there's a good case that the Supreme Court needs to step in and clear it up. If DOJ wants cert, they'll probably get it.

  On other hand, a cert grant may lead to a Supreme Court decision that is hopelessly divided, with a judge in the center imposing a complex balancing test that's pretty unclear. That would be a lot worse than getting such an outcome from a court of appeals. Plus, my recollection is that there aren't any other similarly situated individuals in the system, or at most there is only a handful. Given that the case actually impacts so few people, it may be better to let the lower courts figure this one out and save the possibility of Supreme Court intervention for another day if we end up in a world with more Al Marri's down the road.

  Finally, I hope the Bush Administration will think creatively about how the Al Marri opinions handed down today could be used to bring the war on terror to a quick and victorious end. In particular, the opinions could substitute for waterboarding. Instead of waterboarding the bad guys, the government should force Al Qaeda detainees to go through all 216 pages of the different decisions in one sitting. I would think that even the hardest of Al Qaeda terrorists will break down and confess before making it through, saving many American lives.

Related Posts (on one page):

  1. Thoughts on Al-Marri:
  2. En Banc Fourth Circuit Decides Al-Marri Case: