The Next Showdown - Cert for al-Marri

by publius

Big news on the national security front -- the Court today (over the objections of the DOJ) granted cert in the al-Marri case. The case is arguably the most important yet because the Court seems ready to weigh in on one of the most sweeping powers claimed by the Bush administration -- the power to indefinitely detain legal residents arrested in the United States (and thus citizens).

I'm sure we'll return to it later, but below is a very high-level summary of the case and what's at stake. For more thorough backgrounders, see Greenwald, Lederman, the Brennan Center, and SCOTUSblog.

Al-Marri was a legal resident -- a graduate student -- living in the United States. He was arrested for credit card fraud and was awaiting trial in 2003. Right before trial, the Bush administration declared him an enemy combatant and whisked him away to a naval brig, where's he been held (and allegedly tortured) without charge ever since.

After a complicated legal proceeding, a splintered 4th Circuit (en banc) essentially affirmed Bush's authority to detain him indefinitely under the post-9/11 Authorization for Use of Military Force (AUMF). Actually, the split court had two separate holdings: (1) the government could detain al-Marri indefinitely if it proved he was an "enemy combatant"; but (2) the government had yet to adequately prove that he was in fact an "enemy combatant."

In short, the 4th Circuit said that if the government can prove he meets the enemy combatant definition, then the AUMF authorizes indefinite detention without charge. The court added, though, that the administration hadn't yet proven the former. (This latter holding isn't much of a protection, though, given that -- under Hamdi -- the "due process" required to establish combatant status is far below normal due process standards required for imprisonment).

Anyway, the upshot here is that if Bush can detain al-Marri indefinitely by calling him an enemy combatant, then Bush can detain anyone -- citizens included. That's because legal residents are generally deemed to have the same due process protections as citizens. So yeah, it's an important case.

A few other scattered thoughts below:

First, I think the fact that the Court took the case is a good sign. DOJ, remember, didn't want the Court to hear al-Marri's challenge. True, it only takes four Justices to grant cert, but I doubt the liberal Justices would have pulled the trigger without thinking that Kennedy was on board.

Second, it's possible this case may get dismissed before it's decided. It's just unclear yet what the Obama administration will do (e.g., will it transfer him to the criminal system, making all this moot?).

Third, as Lederman astutely (as ever) points out, this case arguably has little practical effect because it involves a legal resident arrested within the United States. This group of detainees isn't very large. In fact, al-Marri is the only one who currently fits this category (Padilla obviously used to). The other cases generally involve arrests outside the United States. But that said, even if the immediate practical significance isn't very large, the constitutional implications are arguably orders of magnitude larger than the previous cases, given its implications for American citizens.

Stay tuned.

Comments

[xanax]

Any word on Thomas' Folly... aka the formal SCOTUS Conference scheduled for today on Obama's birth/citizenship/legitimacy-as-President-elect?

[Ugh]

Wouldn't Scalia possibly be on the liberal justice's side? IIRC he wrote a scathing dissent with respect to Padilla ability to seek a writ (though who knows, I've lost track).

[Warren Terra]

Any chance that the royalist justices (Scalia, Alito, Roberts) will rediscover due process and limits on executive power now that Obama will be the executive?

[John in Nashville]

I suspect that Justice Uncle Thomas--possibly the only black man in American history to walk away from a "lynching"--is batshit crazy that Mr. Obama got where he is by merit selection rather than by toadying.

[Joe]

The Obama Administration should make the matter moot. As to its narrow reach, as with Padilla and various other matters, the principle (as noted) is the core thing. And, there are probably various connected questions.

Overall, given there is (by one estimation) twenty million lawful non-citizens in this country, the principles here are very important. In fact, as noted by one or more of the people linked, at least some of the judges made claims in that ruling that were not limited to non-citizens at all.

[OCSteve]

Cert for al-Marri

Is that the special? Fish? Can I get steak instead? Medium?

[Fraud Guy]

OCSteve,

You're on the wrong course. We could give you a wafer thin mint after dinner, instead.

[ral]

Definitely don't eat the fish if you might have to fly the plane.

And stop calling me Shirley.

[Nell]

Way to live up to the post, guys.

[Fraud Guy]

Sorry for the detour; the writer of the previous post has been sent to muck out the llama stables.

I am concerned about the second point.

There have been a number of other instances where the Bush administration has sidestepped the legal process by dodging court decisions that may have ended unfavorably for them. Do we want the Obama administration to play the same game and pull out of a case that could come down conclusively for constitutional guarantees (or, unfortunately, against)? Without the imprimatur of the Supremes stating that some of these Bush policies and Congressional laws are, as has been consistently trumpeted on this site and others, unconstitutional on their face and/or in practice, what is to stop some later administration (or the next one) from just deciding that the powers being exercised were not destroyed, but just allowed to lie hidden for a time (a la Gladden Fields).

[Vincent]

While you make a good case, Fraud Guy, I don't think we should ignore that an actual person is being detained. We shouldn't just leave him there just to make a point.

[Enlightened Layperson]

I'm with Fraud Guy. It should surely be possible for the Obama Administration to transfer al-Marri to civilian prison, allow him to communicate with the outside world, and mull over its criminal options while waiting for the Supreme Court to make a decision.

[Hartmut]

And even if SCOTUS decides that the president has the right, there is no 'duty' for Obama to keep him in that 'in(de)finite' state.

[Fraud Guy]

EL,

I concur. Most of the "war" should have been treated as a criminal enterprise; abandoning the high ground for the moral outrage of feel good military action has compromised our standing in the world and caused far more destruction and death than the original attacks.