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Not as conservative as it used to be

The 4th U.S. Circuit Court of Appeals, long considered the most reliably conservative of the federal appellate courts, is beginning to look more like the U.S. Supreme Court, at least on terrorism issues.

Nine judges who participated in the case of Ali al-Marri, the American resident and Qatari citizen who has been designated an enemy combatant, wrote seven different opinions covering 216 pages.

The judges split 5-4 on two key issues in Al-Marri v. Pucciarelli. The court held that President Bush has the authority to order the indefinite detention of civilians captured in the U.S. But it also held that al-Marri must be given an additional opportunity to challenge his military detention in South Carolina federal court.

The New York Times has an analysis of the case.

As some of its most consistently conservative members have left or taken senior status, the court was split 5-5 between Republican and Democratic appointees until former Supreme Court of Virginia Justice G. Steven Agee joined the court recently. Neither Agee nor another Republican appointee, Judge Dennis W. Shedd, participated in the Al-Marri case.

Judge William B. Traxler Jr., a Democratic appointee, was the swing vote on the two issues, with the other judges voting along party lines.

By Alan Cooper

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