DUELING 4TH CIRCUIT JUDGES

Today the 4th Circuit issued an extraordinary opinion denying a panel rehearing in the Hamdi case. (See the opinion here, PDF file; see also Howard Bashman's post here.) What's important about the opinion is less the result, which was not surprising, than the passionate arguments between the circuit judges on the role of the courts during wartime.

One item of note: the vote was 8 to 4 against rehearing, but one of the four voting for rehearing (Bush appointee Judge Luttig) apparently worries that the panel's ruling went too far in restricting the Executive's ability to declare someone an enemy combatant in the future. He states clearly that he would be satisfied with the government's evidence in support of its designation of Hamdi as an enemy combatant. So, in reality, at most there are three judges on the 4th Circuit who think that the court has allowed the government to give Hamdi short shrift. The only person who speaks on that score today is Judge Motz, whose opinion should be read by those who think that liberal judicial heroism is a possibility nowadays. But don't forget that Motz lost. Wilkinson's opinion is important as another expression of the claim that the judiciary should defer to the executive branch when cases turn on factual issues involving zones of active combat operations. Traxler goes a little farther and notes that the case would be much more complex if Hamdi had been arrested on American soil (like Padilla), but he doesn't say how such a case would turn out.