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Government to reconsider Al-Marri case

UPDATED 3:20 p.m. Acting Solicitor General Edwin S. Kneedler on Thursday asked the Supreme Court for a delay until March 23 for the federal government to file its brief on the merits in the Al-Marri case.  This will allow time for the review of the case ordered by the President, Kneedler wrote in this letter.  He added that this schedule would allow Al-Marri’s counsel to file a reply brief in time for oral argument during the week beginning April 27 — the final week for oral argument in the current Term.  The government brief is currently due Feb. 20.


UPDATED 12:50 p.m. The President’s order on the review of the Al-Marri case is here.


President Obama on Thursday ordered the Justice Department to make a new review of the detention case now awaiting a ruling by the Supreme Court — Al-Marri v. Spagone (08-368); the review is to “commence immediately.”  The case involves a Qatari national, Ali Saleh Kahlah Al-Marri, who was seized inside the U.S. where he was living legally, and has been held in military custody in this country for more than five years.

The President said the review “shall expeditiously determine the disposition options with respect to al-Marri and shall pursue such disposition as is appropriate,” based upon “the principles” Mr. Obama set out in another Executive Order, on the fate of the prisoners now being detained at Guantanamo Bay, Cuba.  That other Order can be found here.  The Guantanamo Order was also signed Thursday, putting it into effect. It does not apply to Al-Marri, the President noted, bedcause he is not at the prison at Guantanamo.

In one of the Guantanamo Order paragraphs that the President indicated should apply to the review of Al-Marri’s situation, all government agencies are told to supply everything they know about him to the Attorney General for review, and officials are mandated to decide whether Al-Marri is to be transferred, prosecuted, or given some other disposition.  In the other paragraph mentioned, the Secretary of State is told to pursue diplomatic options with other governments regarding Al-Marri’s fate.

The President said the Justice Department will be asking the Supreme Court to delay the case, and it appears that the U.S. Solicitor General is already planning to seek at least a 30-day extension of time to file the government’s brief in the case — a brief that, at present, would be due Feb. 20.  The case had been expected to be scheduled for oral argument sometime in March.

Jonathan Hafetz, the American Civil Liberties Union who is Al-Marri’s lead lawyer, issued this statement Thursday: “We welcome review of al-Marri’s status because any objective review must conclude that his current detention as an enemy combatant is unlawful.  At the government’s request, we had already agreed to a 30-day extension for the government to file its brief in the Supreme Court, but we will vigorously oppose any request that delays resolution of the case beyond the current Supreme Court term ending in June. Mr. Al-Marri has been illegally detained for 5 1/2 years in military confineement. We fully expect his detention to be struck down upon review by the Supreme Court.”

The other Order just signed by the President is sure to have a significant and early impact on other detainees and their court cases.  It sets a one-year deadline for closure of the prison facility at Guantanamo Bay, and orders up a new review of each case of the 245 detainees still imprisoned at the Cuba base. (A post that was based on the apparently final draft of the Guanatamo mandate can be read here. A comparison of the draft and the final issued version shows no substantive changes, so the discussion of the draft applies to the Order as issued.)