The 4th Circuit today released its opinion in Al-Marri v. Berman, No. 06-7427. Fuller analysis later, but here is the opinion. Until then, it’s the usual suspects–citation of Quirin, Ex Parte Milligan, etc. The opinion limits the habeas-stripping provisions of the Military Commissions Act (MCA), holding that “As an alien captured and detained within the United States, he has a right to habeas corpus protected by the Constitution’s Suspension Clause.” Opinion at 13. The opinion then remands to the Federal judge in South Carolina, instructing the judge to order the Pentagon to release Al-Marri from military detention so that the Pentagon can transfer Al-Marri to federal civilian custody for trial in federal civilian (criminal) courts. The court barred military detention of non-U.S. citizens who were detained inside the U.S., but “lawfully admitted to this country [and] who have established substantial connections here.” Op. at 30.
The court further orders: “The Government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act. But military detention of al-Marri must cease.” Op. at 77.