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U.S. would leave detention power unsettled

The Obama Administration asked the Supreme Court on Friday afternoon to end the case of an individual captured and held in the U.S. as a terrorism suspect, but did not tell the Court that it is abandoning the claim that it has power to do so.  Instead, it argued that the planned release of Ali Saleh Kahlah Al-Marri from a military jail, for criminal prosecution in civilian court, means there is no longer any live controversy over his detention.

Simultaneously, the Solicitor General’s office asked the Court to approve Al-Marri’s release into civilian custody, even though it argued that the Court’s permission to do that was not necessary.  These developments followed the public release Friday morning of a two-count criminal indictment of Al-Marri (see this post).

Indicating that it probably will act swiftly on the two requests, the Court asked Al-Marri’s lawyers to respond to both by the end of the day on Tuesday, with any government reply due on Wednesday.  That could mean the Justices could respond as soon as it has those filings, or else  consider it in their private Conference next Friday.

The motion to end the case is here, and the application to approve Al-Marri’s transfer (08A755) is here.

The Administration’s motion suggested two alternatives to the Court: dismiss the case for lack of jurisdiction because the specific legal dispute will end with Al-Marri’s release by the military — a move that apparently would leave the detention power unaltered because it would leave intact a Fourth Circuit Court decision upholding that authority — or vacate the Fourth Circuit’s decision, essentially taking it off the books, and end the case as “moot” or as a matter of “equitable discretion” (a phrase not further explained).

Al-Marri’s lawyers had noted earlier in the day that, despite Al-Marri’s indictment, the Administration had not yet renounced “the asserted authority to imprison legal residents and U.S. citizens without a charge.”  In the government’s new filings in the Court, there was no indication that it would do so.

In response to the filings, Al-Marri’s lead lawyer, Jonathan Hafetz of the American Civil Liberties Union, commented: “The administration has failed to renounce the government’s power to designate legal residents and American citizens as enemy combatants and detain them indefinitely without charge. Its response underscores why the Supreme Court must make clear that the government does not have this power under our laws and Constitution.”

The new document made two points: first, it said that the government had made “a change in policy as to” Al-Marri, and thus there is only a “hypothetical contigency” that he might in the future be detained again by the military, and, second, it said that “different circumstances” would exist in the future and contended that “there is no guarantee that future detention would be implemented in the same manner or based on the same authority.”

The second point did seem to imply that detention policy could change at some point, and that appeared to be related to a statement later in the document saying that there can be no certainty that the issues over detention policy raised in Al-Marri’s case “will arise again in the future,” noting that the President “has ordered a comprehensive review of all military detention policies worldwide.”

The government cautioned the Court against deciding the presidential power questions, calling them “extremely sensitive constitutional issues.”  It added: “Caution is particularly appropriate here because upon [Al-Marri’s] release and transfer, there will be no remaining individuals detained as enemy combatants on United States soil.”  Thus, it went on, a ruling in Al-Marri’s case would not provide “guidance to any other” individuals in Al-Marri’s situation.

“Adjudication of the important and sensitive questions surrounding military detention should be addressed only if necessary, in the context of a live case involving concrete circumstances,” the motion concluded.

Al-Marri has been held for nearly six years at the U.S. Navy brig in Charleston, S.C.   Former President Bush designated him an “enemy combatant” in 2003, after getting information from intelligence officials that they believed he had come to the U.S. the day before the 9/11 attacks in 2001 to set up a “sleeper cell” of terrorists.  (Those allegations appeared to be at the heart of Al-Marri’s indictment Friday, accusing him of arranging for “personnel” to support the al-Qaeda terrorist network.)

President Obama, in a memo Friday, told the Pentagon to hand over Al-Marri for transfer to a civilian facility to await trial on the new charges.  When that transfer occurs, the memo said, the Pentagon’s authority to continue detaining Al-Marri “shall cease.”

To be on the safe side legally, and to avoid showing disrespect for the Court, which is considering Al-Marri’s challenge to detention, the Administration filed a formal application for the Court to “facilitate” his transfer from the Navy brig to civilian custody.  The Court, it suggested, should “acknowledge” the release and transfer and, if any permission is necessary for that, to grant it.  It also urged Court action on this request “as expeditiously as possible.”  The Court seemed willing to act rapidly.

In urging the Court to dismiss the case, the motion argued: “Under Article III of the Constitution, the federal court lacks jurisdiction to entertain a case that no longer presents a live controversy…Because petitioner’s habeas action no longer meets the core jurisdictional requirements of Article III, there is no longer a subject matter on which the judgment of the Court could operate.”

Any ruling on presidential domestic detention power, it added, “would be no more than an abstract pronouncement on a set of facts that no longer applies to petitioner.”

The motion also argued that the case could not be kept alive under any of the exceptions to dismissal of a case where the legal controversy has come to an end.