Friday, March 6, 2009
The Supreme Court on Friday vacated the Fourth Circuit opinion in Al-Marri v. Spagone and remanded the case with instructions to dismiss the appeal as moot after the government indicted al-Marri last week in federal court.
Recall that the Fourth Circuit ruled that the administration had authority under the Authorization for Use of Military Force to indefinitely detain al-Marri, a lawful U.S. resident, as an enemy combatant in the United States. (The Fourth Circuit did not rule on the Bush administration's claim that the executive possessed inherent authority, irrespective of the AUMF, as commander in chief.)
Al-Marri appealed to the Supreme Court.
Then just last week, the Obama administration indicted al-Marri in federal court, moving him from indefinite military custody to the Article III system. Al-Marri and the administration filed briefs on whether this move mooted the case: Al-Marri argued no; the administration argued yes. But both argued in the alternative that the Court should vacate the lower court decision and instruct it to dismiss the appeal as moot. (My post, with links to briefs, is here.)
The Court's order means that the Fourth Circuit ruling is no longer good law. And the Obama administration's alternative argument--that the Court should vacate the Fourth Circuit--suggests that this administration does not believe that the AUMF (let alone inherent executive authority) authorizes the President to indefinitely detain a lawful U.S. resident as an enemy combatant in the United States.