Tuesday, March 3, 2009
Attorneys for Ali Saleh al Marri yesterday filed a brief opposing the government's motion to dismiss the case as moot. Recall that the administration indicted al Marri last week in federal court, thus (it argued) mooting the case at the Court. The indictment is here. Thanks to the ACLU for posting these and other documents in the case.
Al Marri is the lawful U.S. resident detained in the U.S. by the Bush administration as an enemy combatant and held indefinitely in military detention within the U.S.
Al Marri's attorneys argued that the case meets the capable-of-repetition-but-evading-review exception to the mootness doctrine under Article III and Friends of the Earth v. Laidlaw. That doctrine holds that a case is not moot if, as the doctrine's name suggests, a controversy is capable of repetition but evades review. (Cases challenging restrictions on abortions may be the clearest example.) Al Marri also argues that prudential concerns also counsel in favor of review, so as to avoid another Padilla situation. (Recall that the government got a favorable Fourth Circuit decision in Padilla v. Hanft and then transferred Padilla out of military custody before the Court could consider a cert. petition. The Court ultimately denied cert., Justice Kennedy concurring and Justice Ginsburg dissenting.) The difference in procedural posture between the two cases: The Court already accepted cert. and put al Marri on the OT08 calendar.
Al Marri's attorneys obviously would like the Court to overturn the Fourth Circuit's ruling. The Obama administration in arguing for dismissal did not reject the Fourth Circuit's ruling or disclaim its power to detain al Marri; instead it argued only that al Marri doesn't satisfy the mootness exception. (Thanks to SCOTUSblog for posting the administration's motion.) But both parties argued in the alternative that the Court should vacate the Fourth Circuit ruling and remand with instructions to dismiss the case as moot. This is the cleanest way to take the Fourth Circuit ruling off the books and get rid of the case--probably the most appealing option for the Court.