The 4th Circuit does one more round on enemy combatants.

RICHMOND, Va.—The Justice Department must think three times is a charm when it comes to the enemy combatants they've socked away in Navy brigs.

Its first kick at the can was Yaser Esam Hamdi—a U.S. citizen captured on the battlefield in Afghanistan and held for almost three years by the military without charges. After a face-off with the Supreme Court, Hamdi was released and sent home. (Oops.) The second try was Jose Padilla, grabbed as a so-called dirty bomber, * locked down in a Navy brig where he was—it seems—brutally treated, then demoted to a civilian criminal trial just prior to a face-off with the Supreme Court. (Oops, we did it again.) And then there was one: Ali Saleh Kalah al-Marri is the last person designated an enemy combatant who's still in a brig. Unlike Hamdi and Padilla, al-Marri, who is being held in Charleston, S.C., * isn't a U.S. citizen. Unlike Hamdi and Padilla, he was nabbed on the streets of Peoria, Ill. And unlike Hamdi and Padilla, the government has not yet gone toe-to-toe with the U.S. Supreme Court in his case.

But today the government goes toe-to-toe with Judge Diana Gribbon Motz of the 4^th Circuit Court of Appeals. The same Judge Motz who wrote a dissent in Rumsfeld v. Hamdi that could light your barbecue from 100 feet:

I fear that [this court] may also have opened the door to the indefinite detention, without access to a lawyer or the courts, of any American citizen, even one captured on American soil, who the Executive designates an 'enemy combatant,' as long as the Executive asserts that the area in which the citizen was detained was an 'active combat zone,' and the detainee, deprived of access to the courts and counsel, cannot dispute this fact.

The 4^th Circuit outvoted her in Hamdi and got snookered in Padilla. The question today is whether that court's capacity for being worked by the Bush administration is infinite. The three-judge panel hears argument this morning in the federal courthouse in Richmond.

Al-Marri has been in federal custody for more than five years, 17 months of which he served without any legal contact. A native of Qatar here on a student visa, he was picked up after Sept. 11 and, if the government is to be believed, his phone records and computer files show connections to the planners and financiers of 9/11 as well as plans for future chemical attacks. But in 2003, before he stood criminal trial on credit card and other fraud charges, the Bush administration swooped him up, tagged him an "enemy combatant," and threw away the key. A federal judge in North Carolina agreed that detention was lawful. So, here we are in Richmond.

Jonathan Hafetz, from the Brennan Center for Justice, represents al-Marri, who isn't in court. He tells the panel the only question in this dispute is "whether criminal law or military law governs," warning that the president "can't militarize the arrest of a man in Peoria by a stroke of the pen."

He turns to whether the court even has jurisdiction to hear this case. The recently enacted Military Commissions Act of 2006 provides, in part, that "[n]o court, justice, or judge shall have jurisdiction to hear or consider any [legal] action against the United States ... related to any aspect of the ...  confinement of a noncitizen properly deemed an enemy combatant." A threshold question for this panel is whether, as the government contends, the MCA strips it of the power to hear the habeas petition of a legal resident who is detained in the United States.

Judge Motz questions Hafetz on how, under the statute, someone is "properly deemed" an enemy combatant and presses him to distinguish al-Marri from the detainees at Guantanamo. Hafetz says that as a lawful resident alien, al-Marri is entitled to "the same rights under the Fifth and Sixth Amendments of the Constitution as any citizen of the United States."

Motz: "The bulwark of your argument is that he has certain constitutional rights. What constitutional rights?" She adds: "Habeas doesn't give him a right. It just gives him a remedy."