Detainee ruling rejects Bush terror-war tactic

An appeals court said Monday it retains jurisdiction to decide military-custody issue.

from the June 13, 2007 edition

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The judges ordered Marri's release from military custody. But that order is expected to be stayed pending a government appeal to the entire Fourth Circuit.

The appeals process will likely take at least three to four months and could set the stage for a sharply divided court, says University of Richmond Law School Professor Carl Tobias.

Professor Tobias says the court's chief judge is expected to move from active status to senior status in July. He says the remaining active judges might split, 6-to-5, on the central issues of presidential authority in the Marri case. "It is very close," he says.

The jurisdictional issue may be another matter.

It is unclear whether the government will seek to revive its argument that the Military Commissions Act strips the court of jurisdiction to hear Marri's case.

In her ruling on the jurisdiction question, Judge Motz noted an inconsistency in the government's argument.

The court-stripping provisions in Section 7 of the Military Commissions Act say that "no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

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