Mr. al-Marri, a citizen of Qatar and legal U.S. resident, was arrested [at his home]in Peoria, Illinois, in 2001 as a material witness in the FBI's investigation of 9/11. In 2002, he was charged with credit card fraud and other criminal offenses. Shortly before his criminal trial commenced in June 2003, the President declared him an "enemy combatant" and moved him to a Navy Brig in South Carolina, where the government has subjected him to torture and other cruel treatment. Five years later, Mr. al-Marri still remains in solitary confinement without charge.

Question Presented – Does the President have legal authority to detain a legal resident arrested in the United States without charge by declaring him an "enemy combatant"? This case challenges the President’s assertion of unchecked executive detention power over all individuals in the United States.

Shorter facts version: al-Marri, a legal resident of the U.S. is arrested at his home in Peoria, Ill and held for 5 years as an enemy combatant based on second- and third-hand allegations that he came to the U.S. to be a sleeper agent for al-Qaeda.

Although Mr. al-Marri was arrested at his home in the middle of the United States, the President claims the power to hold him indefinitely as an “enemy combatant” based upon second- and third-hand allegations that he is an “al Qaeda sleeper agent.” No evidence was presented to sustain these allegations, many of which appear to have been gained through torture. Further, the President asserted that the Military Commissions Act of 2006 strips the federal courts of their historic habeas corpus review over his challenge to his detention. If so, any of the millions of immigrants in the United States can be swept off the streets and locked in a military jail without access to the courts.

Mr. al-Marri’s case challenged the President’s assertion of unchecked executive detention power over all individuals in the United States. In the Administration’s view, the President has the authority to arrest and detain individuals without charge, without due process, and without meaningful judicial review. Congress, however, has not authorized such unchecked executive detention authority and the Constitution squarely prohibits it.

More from the New York Times article on today's decision:

In the conclusion of his long opinion, Judge Wilkinson said terrorism cases present courts with special challenges.

“We may never know,” he said, “whether we have struck the proper balance between liberty and security, because we do not know every action the executive is taking and we do not know every threat global terror networks have in store.”

al-Marri is represented by the Brennan Center for Justice. You can access their page with documents and details about his case here.

TalkLeft reader and commenter Scribe points out in an e-mail to me footnote 14 on page 27:

At oral argument before the en banc court, however, the Government finally acknowledged that an alien legally resident in the United States, like al-Marri, has the same Fifth Amendment due process rights as an American citizen. For this reason, the Government had to concede that if al-Marri can be detained as an enemy combatant, then the Government can also detain any American citizen on the same showing and through the same process.

Scribe adds by way of commentary:

The short end of it is - if it's true al-Marri's an "enemy combatant", then the Executive was allowed to use the military to seize and hold him. But, al-Marri was not afforded proper protection and opportunity to challenge his confinement.

Apparently, a lot of vigorous vehemence from the wingers on the court, in the vein of the dissenting losers in Boumedienne.