Justice Department: al-Marri Case Should Be Dismissed

March 04, 2009

Now it's up to the Supreme Court. The Department of Justice formally replied this afternoon to the American Civil Liberties Union's plea a day earlier to keep the case of onetime enemy combatant Ali al-Marri alive on the Supreme Court's docket. We reported here on the ACLU brief.

The ACLU urged the Court to decide the case, set for argument April 27, in spite of the fact that President Barack Obama has ordered the transfer of al-Marri from military custody to the civilian justice system, where he has been indicted for providing material support to a foreign terrorist group. The issue in the Supreme Court case is whether the president had the authority to hold al-Marri, who was legally in the United States, indefinitely in a military brig on U.S. soil.

Acting Solicitor General Edwin Kneedler, in a reply that lists only himself on the cover, urges the high court to reject the ACLU's arguments and dismiss the case as moot. "Petitioner asks this Court to resolve extremely sensitive constitutional questions in order to render a hypothetical pronouncement that will not affect the legal rights of petitioner or any other person. This Court should decline that suggestion." Because al-Marri's status has undergone a "definitive and fundamental change," Kneedler argues, the issues raised in his Supreme Court case are no longer viable. "No live controversy remains." Even if theoretically al-Marri could be returned to military custody, Kneedler says the circumstances would be different and could be addressed in new litigation.

Interestingly, Kneedler also denies the ACLU's allegations that the government's decision to end al-Marri's military detention was a "temporary diversion intended to frustrate judicial review" of the determination of the U.S. Court of Appeals for the 4th Circuit that President George W. Bush had authority to detain al-Marri. Al-Marri's transfer results from a grand jury indictment, Kneedler points out, adding that the government would support action by the Supreme Court to vacate the 4th Circuit ruling as moot.

The Supreme Court, which is often sympathetic to arguments of mootness, is expected to discuss the issue at its private conference March 6, with an announcement likely to follow soon thereafter.

Posted by Tony Mauro on March 04, 2009 at 06:27 PM in Supreme Court