Fourth Circuit Mess: The Shape of Things to Come
An en banc panel of the Fourth Circuit announced its decision in a Guantanamo detainee case, Al-Marri v. Pucciarelli (PDF) today and it is a mindnumbing 216 pages long. The decision itself is per curiam which means the court came to a conclusion without assigning a specific judge to present it. Why? There are nine judges and seven different opinions, including two different 5-4 decisions and four decisions “concurring in part and dissenting in part.” This is what the War on Terror looks like in the federal courts. It is an unholy mess.
Boumediene is cited throughout the opinions. It would be amusing were it not so important, but the judges have conflicting ideas about the meaning of several Supreme Court cases, including Boumediene and Hamdan. The opinions also have duelling claims about international law. Justice Stevens’ disastrous mistake of international law in Hamdan (characterizing the war against Al Qaeda as “not of an international character”) is cited as binding precedent by one opinion, while another ignores it completely. These judges are doing a very good impression of nine people who simply have no idea what they are doing. One judge even attempts to justify his decision by declaring that he can predict how Supreme Court justices would rule on the questions, explicitly admitting, I suppose, that the law is only what the Supreme Court says it is and legislatures be damned.
I don’t have time right now to go through the opinions to see what they got right and what they got wrong (and we might as well wait for the inevitable Supreme Court case anyway), but I will summarize the result. First, Al-Marri, even though he is a legal permanent resident of the U.S., can be held as an enemy combatant. My reasoning last year on that point was that if we can hold a U.S. citizen (as in Hamdi), we can hold an LPR. Second, Al-Marri has not been given his constitutional due process opportunity to challenge his detention.
I am pleased that they came to the conclusion that I predicted in June of last year, though that was when it was possible that the Supreme Court could take the case. Still, I have no confidence in how they came to their conclusions:
Well, if the Fourth Circuit takes it en banc, I expect that they will reverse, but that is based only on the conservative reputation of the circuit.
If the Supreme Court takes it, I expect that we will see something similar to the Hamdi case in 2004. The Hamdi ruling establishes that the AUMF 2002 allows the indefinite detention of enemy combatants, even U.S. citizens, but they must be given limited due process because they possess Fifth Amendment rights. Here, Al-Marri (who as a resident alien has Fifth Amendment protections) was denied even limited due process.
I just can’t wait to see the mess when the district courts and the other circuits get involved.
Update: Oh yeah, and while I’m thinking of it: Judges Matter.