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"[I]f the Government's allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant"

"[I]f the Government's allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant," but "assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government's allegations against him are true, al-Marri has not been afforded sufficient process to challenge his designation as an enemy combatant": So holds the en banc U.S. Court of Appeals for the Fourth Circuit today, by means of a per curiam opinion, dividing 5-4 on each of these two holdings.

In addition to the court's short per curiam opinion, seven of the nine judges participating in today's en banc ruling wrote separate opinions:

Judge Motz wrote an opinion concurring in the judgment, in which Judges Michael, King, and Gregory joined. Judge Traxler wrote an opinion concurring in the judgment, in Part II of which Judge Niemeyer joined. Judge Gregory wrote an opinion concurring in the judgment. Chief Judge Williams wrote an opinion concurring in part and dissenting in part, in which Judge Duncan joined. Judge Wilkinson wrote an opinion concurring in part and dissenting in part. Judge Niemeyer wrote an opinion concurring in the judgment in part and dissenting in part. Judge Duncan wrote an opinion concurring in part and dissenting in part. Judge Shedd did not participate in this case.

The entire en banc ruling totals 216 pages.

Back on June 11, 2007, a divided three-judge Fourth Circuit panel ruled 2-1 that al-Marri could not be held as an enemy combatant. This blog's coverage of that ruling appeared in various posts made on that date and in this post from the following day.

Full post as published by How Appealing on July 15, 2008 (boomark / email).