I Thought This Was Settled.

The Al-Marri ruling yesterday in the 4th circuit kind of confused me. Glenn Greenwald has a good contextual explanation over at Salon. As I understand it, the President can still designate citizens (or non-citizens in the U.S. legally like Al-Marri) as "enemy combatants" and detain them forever ... but they do get a chance to challenge the enemy combatant status. Only if it sticks can they be detained indefinitely. Now, I thought that the Gitmo cases in '05 (Hamdan, Hamdi, Rasul, etc.) said prisoners couldn't be held indefintely - but now I think they simply said they cannot be held indefinitely without process. The Padilla case, where the 4th Circuit said the President had the power of executive imprisonment (simply by designating someone - a citizen - as an "enemy combatant") was never tested in the Supreme Court because the government (seeing the writing on the wall) brought criminal charges against Padilla. Therefore, the 4th Circuit's holding that the President can designate and detain citizens under an "enemy combatant" designation is still good law. That's what the 4th Circuit followed in Al-Marri, and then following Hamdi and Boumediene said Al-Marri still needs to get some process. Anyway, I'm sure this will be heard by the Supreme Court, and they'll reverse (even Scalia doesn't think the President can arbitraily designate citizens as enemy combatants).

All the loopholes are just confusing.