Saturday, December 6, 2008

Court Grants Cert. in Al-Marri

The Supreme Court announced on Friday that it will review the Fourth Circuit ruling in Al-Marri v. Pucciarelli upholding the president's authority under the AUMF to indefinitely detain a lawful U.S. resident who was both captured and detained in the U.S. as an enemy combatant, without criminal charges.  I've posted before on the case here, here, here, and here; the NYT reports here; SCOTUSblog reports here.

Briefs won't be due until after President-Elect Obama's inauguration.  Between his inauguration and briefing, Obama could (1) do nothing (and maintain the Bush administration position, supported by the Fourth Circuit, before the Supreme Court); (2) charge Al-Marri in an Article III court under federal criminal law, thus (maybe) mooting the case at the Supreme Court; (3) same as (2), but charge Al-Marri in a military tribunal; (4) reverse the Bush administration position in full and release Al-Marri, (maybe) mooting the case.

(Why "(maybe)" moot?  Because it's a classic case of "capable of repitition but evading review."  The last time something like this happened--Padilla v. Hanft--the Court denied cert. after Padilla was transferred to civilian custody after an adminsitration-favorable Fourth Circuit decision, rebuffing Padilla's claim that the controversey was capable of repitition but evading review.  (Kennedy's opinion here; Ginsburg's here.)  Here, the Court has already granted cert., knowing well that it won't hear the case until Obama is president; this could change things.)

(Another interesting issue:  How much should--and how much will--the Bush administration defer to Obama's position in formulating strategy at the Court?)

Any of the first three options probably ensure that Al-Marri will remain in detention, at least until the case is decided or until he's served a sentence. 

This is a significant--and tough--test for Obama.  His decision will signal his position on executive authority in the war on terror in a deeply troubling and far-reaching case.  It would be difficult for Obama to maintain the Bush administration's vast claims of executive authority here: The implications of the administration's position--and the Fourth Circuit's ruling--are staggering.  But if he backtracks (and if this moots the case at the Supreme Court), the Fourth Circuit ruling stands, and he could be seen as weak on executive authority and weak on terror.

I'll update as we get more.

SDS

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