Here we go again. According the The New York Times:
The case concerns Ali al-Marri, the only person on the American mainland being held as an enemy combatant, at the Navy brig in Charleston, S.C. Mr. Marri, a citizen of Qatar, was legally in the United States when he was arrested in December 2001 in Peoria, Ill., where he was living with his family and studying computer science at Bradley University.
Eighteen months later, when Mr. Marri was on the verge of a trial on credit card fraud and other charges, President Bush declared him an enemy combatant, moving him from the custody of the Justice Department to military detention. The government says Mr. Marri is a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.
The case, which will probably be argued in the spring, will present the Obama administration with several difficult strategic choices. It can continue to defend the Bush administration’s expansive interpretation of executive power, advance a more modest one or short-circuit the case by moving it to the criminal justice system.
In July, the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., issued a fractured decision in the case. In one 5-to-4 ruling, the court ruled that the president has the legal authority to detain Mr. Marri.
But a second, overlapping 5-to-4 majority of the court ruled that he must be given an additional opportunity to challenge his detention in federal court. An earlier court proceeding, in which the government had presented only a sworn statement from a defense intelligence official, was inadequate, the second majority ruled.
The issue of the President's power to detain enemy combatants under the post-9/11 congressional Authorization to Use Military Force was decided in the President's favor in Hamdi v. Rumsfeld in 2004. But the Court also said that detainees must be given a hearing to challenge their designation.
The difference between this case and Hamdi and the other detainee cases appears to be that al-Marri was seized while lawfully residing in the United States. Hamdi was captured on the battlefield in Afghanistan. Jose Padilla, another detainee held as an enemy combatant (and later tried and convicted) was captured upon arrival at the Chicago airport, but in connection with his activities in Afghanistan. Al-Marri's attorneys are apparently arguing that the circumstances of his case are beyond the detention authority granted to the President in the AUMF and that, consequently, he must either be tried or released.
I haven't read the briefs yet but it's hard to see how the location of his capture would make much of a difference to the Court. If indeed the President has the power to detain people he designates as enemy combatants under the AUMF, as the Court held in Hamdi, al-Marri is entitled to a status-review hearing but not a trial. The government's claim, after all, is that he is acting in concert with Al Queda. The AUMF allows the President to use force, including detention, against any person or organization "he determines" is connected with 9/11. It contains no geographic restriction on where that force may be used and no requirement of a connection to any traditional "battlefield." Indeed, Hamdi was a citizen held in South Carolina after being captured abroad, facts which made no dent in the President's power to detain enemy combatants. But the executive power is now on a losing streak in these war-on-terror cases, so bets are off.
As for the position of the Obama administration in the case, will this be another test of the Orin postulate that all things criminal and reckless under the Bush administration will now be necessary and proper under the enlightened one?
UPDATE: Find links to the briefs at SCOTUSBlog here.