There is some debate about that 4th Circuit court ruling yesterday as to whether it means the Executive branch can designate US citizens arrested within US soil as "enemy combatents" or merely "civilians" (legally present non-citizens).
The ruling is 216 pages because almost every judge wrote his or her own opinion, but I'm pretty sure this ruling is not limited in any meaningful way to civilians and would easily encompass citizens too.
I rebutted in a comment to the diary about this on the rec list, but let me do so again here:
From Judge Traxler, writing for the majority (p98):
Under the current state of our precedents, it is likely that the constitutional rights our court determines exist, or do not exist, for al-Marri will apply equally to our own citizens under like circumstances. This means simply that protections we declare to be unavailable under the Constitution to al-Marri might likewise be unavailable to American citizens, and those rights which protect him will protect us as well.
Another key passage from his majority opinion (p72):
I am of the opinion that the AUMF also grants the President the authority to detain enemy combatants who associate themselves "with al Qaeda, an entity with which the United States is at war," and "travel[ ] to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets," even though the government cannot establish that the combatant also "took up arms on behalf of that enemy and against our country in a foreign combat zone of that war."
Nothing in that passage delinates some legal distinction between civilian enemy combatants and citizen ones. Why should it? The 5th Amendment, which is the basis of al-Marri's request for relief here does not make any distinction about citizenship versus mere presence on US jurisdiction. The 5th Amendment is a universal right. If the Majority thinks the government can ignore it for civilians, why would citizens have any extra protection under it?
Finally, of the passages I've dug up on this, from Judge Motz' outstanding opinion in the minority (p7):
Our colleagues hold that the President can order the military to seize from his home and indefinitely detain anyone in this country - including an American citizen - even though he has never affiliated with an enemy nation, fought alongside any nation's armed forces, or borne arms against the United States anywhere in the world.
Now I don't want to rely on a fallacy of appealling to authority, but Motz' understanding of the majority opinion is that it includes non-citizens, and at least one Judge writing for the Majority is inclined to agree. It's possible there are some aspects of the ruling that neither judge grasped which might contravene that, but if there are, they are purely notional, creative law. The 5th amendment doesn't specify and neither does the 2001 AUMF which is what the Executive branch is mostly relying on here for this authority.
I have also written about this at Openleft.com with some analysis of the Judges themselves and how the ruling fell on partisan lines.
-Daniel De Groot
Help build the progressive governing coalition at Openleft.com