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.

The New York Times has a thoughtful piece by Adam Liptak this weekend on the Obama Administration’s difficult choice in its forthcoming brief in the Supreme Court case of al-Marri v. Pucciarelli. Essentially, the Obama Administration will have to choose between continued detention, deportation to a third country, or prosecution.

Each choice is perilous. If Obama chooses continued detention he will affirm much of the Bush Administration’s central claim that this really is a war on terror and that the legal framework of war authorizes detention of enemy combatants during continued hostilities. Treating terror as war and terrorists as warriors would enrage civil libertarians. Failing to do so would leave Obama open to criticism for being soft on terrorism. Forcing this question in Obama’s first month in office should be avoided at all costs.

That means Obama should find a way to render the case moot….