So What Does the Supreme Court Do with al-Marri Now?

by Roger Alford

Yesterday Barack Obama signed an Executive Order directing an immediate review of al-Marri’s status. “The Review shall expeditiously determine the disposition options with respect to al-Marri and shall pursue such disposition as is appropriate.”

So what should the Supreme Court do with the al-Marri case now? As I noted earlier this month, Obama essentially has the choice to either detain, deport, and prosecute al-Marri. Each is perilous and fraught with difficulty. I certainly don’t think this Executive Order renders the case moot. Presumably his status remains unchanged during the review period.

But perhaps what this Executive Order does is buy time. It would be prudent for the Supreme Court to either dismiss the case as improvidently granted or at a minimum provide the Department of Justice an extension of the February 20 (with a requested extension to March 23) briefing deadline. I can’t imagine the case will go full-steam ahead in light of this development.

5 Responses

  1. I think an extension is reasonable, but it would be a grievous injustice to dismiss the case.

  2. Why so? I’m thinking of the situation of Medellin where the Bush memorandum led the court to dismiss as improvidently granted and wait and see how it would play out in Texas state courts.  A logical scenario would be for the Court to dismiss, let Obama review al-Marri’s status, and in the unlikely event Obama chooses to continue to detain him, then the Court can take the case up again.

  3. The District Court held a hearing on the facts and entered a judgement that al Marri was an enemy combatant. The Fourth Circuit remanded the case to repeat the hearing with different rules of evidence. The current appeal asserts that without regard to the as yet unresolved questions of fact, the law requires his release. In such a case, the Court begins by assuming that al Marri is an enemy combatant and then searchs for some law that prevents his continued detention even though he is an enemy combatant. If you believe, as I do, that no such law exists, then this appeal simply delays the District Court hearing to determine the facts and therefore extends rather than shortens the time before al Marri gets meaningful judicial review of his case.

    A decision by Obama to not release al Marri isn’t a decision “to detain him” but rather it allows his status to be determined in a court of law by an Article III judge based on evidence submitted by both sides. If the District Court again finds that, based on the evidence presented, the government has proven that al Marri is indeed an enemy combatant, then the case could make its way back to the Supreme Court. If the court finds for al Marri, I would not expect this administration to appeal that decision.

  4. Lyle Denniston at SCOTUSblog reports that the Court has granted the government an extension until March 23…

  5. Roger,

    Because the case is ripe now, and a dismissal could cost the petitioner another year of his life.  Cf. Boumediene v. Bush, 553 U.S. ___ (2008), slip op. at 66:

    “While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.”


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