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Al-Marri: Case should go ahead

Saying that the Obama Administration is keeping open the option of sending a Qatari national back to a military jail indefinitely, his attorneys urged the Supreme Court on Tuesday to go ahead and hear his challenge to his captivity.  In a brief opposing a Justice Department plea to dismiss the pending case of Ali Saleh Kahlah Al-Marri, his lawyers contended that the issues he raised about presidential detention authority are “as fundamental and important now” as when the Court agreed in December to hear the case.

“Unless the government can give al-Marri the assurance that he no longer faces the risk of renewed military detention under the claimed authority,” his lawyers said, the case is not moot — that is, no longer involves a live controversy.

At the same time, his lawyers told the Court in a letter that they take no position on a government request to approve Al-Marri’s transfer from military to civilian custody, to await trial in civilian court on new criminal charges.

The Court on Dec. 5 agreed to hear the case of Al-Mari v. Spagone (08-368), testing whether the 9/11 Resolution passed by Congress after the 2001 terrorist attacks gives the President the authority to detain indefinitely, without charges, an individual legally in the U.S. and then held captive inside the country. If the Resolution does have that effect, Al-Marri’s attorneys argued, it is unconstitutional. The Court has set the case for oral argument for April 27, but that would not occur if the case is dismissed.

If the Court does decide that the case is “moot,” Al-Marri’s counsel asked the Court in dismissing the case to wipe out the Fourth Circuit Court ruling upholding the claimed detention power.

“The Fourth Circuit’s fractured judgment,” the brief contended, “rests upon splintered opinions that confuse, rather than clarify, the law surrounding the critically important question presented.” And, it went on, dismisal without vacating the lower court ruling “would leave legal residents and American citizens within the country vulnerable to indefinite military detention in the future without the benefit of this Court’s definitive resolution of the matter.”

The Justice Department is expected to file a reply Wednesday, and the Justices probably will consider the issue later this week.

In urging the Court to dismiss the case, the Justice Department did not indicate that it was surrendering the detention authority that is at issue.  That omission forms the heart of the response by Al-Marri’s lawyers.

It is the government’s obligation, the brief said, to show that the military detention of Al-Marri will not recur.  It has not done so, it added, and there has been no repudiation of the possibility that he would again be returned to military custody.

The lawyers added that the government motion even included speculation about ways that such a return could come about, including the possibility of doing so on the basis of information that came out during his trial on criminal charges. “Plainly, the government continues to view al-Marri’s military detention as a viable option,” it said.

If that risk is not dispelled, the lawyers argued, the threat of new detention “will necessarily hang over the criminal prosecution, unfairly increasing the government’s leverage in ways that could materially affect trial strategies and outcomes.”  The brief noted that, when Al-Marri was originally designated an “enemy combatant” and was then shifted to military custody after he had been held on minor criminal charges (which were dismissed at the time), then-Attorney General John Ashcroft said that shift was done because Al-Marri had become a “hard case” who refused to provide information about terrorist activities.

The brief also noted that this is the second time that the government has shifted a prisoner from military to civilian custody on the eve of Supreme Court review of military detention — the first was in the case of Jose Padilla in 2006.  That shift, the brief noted, left unanswer the question of the President’s detention authority inside the U.S.

“This Court should not allow that claimed detention authority to evade review again,” the brief concluded.