Thursday, January 22, 2009
The Obama administration has asked the Supreme Court for an extension of time to file its brief in Al-Marri v. Pucciarelli, the case involving the government's authority to indefinitely detain, without charges, a lawful U.S. resident, captured and held in the U.S., as an enemy combatant. I most recently posted on the case here; SCOTUSblog reports here.
The administration could certainly use the time to sort this out. The best solution might be to move al-Marri to a regular federal prison and try him on federal criminal charges (if the evidence supports a charge) in regular Article III courts--a tack favored for other detainees by advocates and the new administration. But this would moot the case at the Supreme Court and leave the Fourth Amendment ruling, with its expansive reading of executive authority, on the books.
Another solution: Let him go. This also moots the case and leaves the Fourth Circuit ruling on the books. And more: He might be dangerous, and he might not have a home. (Remember the Uighurs?)
We'll keep an eye on this for you.