Lawyers for Ali al-Marri are bittersweet over the Obama administration’s decision to transplant him from a navy brig in Charleston, S.C., where he was held for five years without charge, into the criminal justice system.
A federal grand jury in Illinois indicted al-Marri yesterday on charges of providing, and conspiring to provide, material support to al-Qaeda. And now he and his lawyers may lose their chance to challenge the Bush administration’s controversial assertion of executive power to hold civilians indefinitely on American soil.
The U.S. Court of Appeals for the 4th Circuit, sitting en banc, sided with the Bush administration on the issue of indefinite detainment, and the Supreme Court granted certiorari in al-Marri’s case in December.
The question facing the Court is whether the Authorization of Use of Military Force and the Constitution permit the president’s use of indefinite military detention.
Today, the Obama administration moved to dismiss the case, arguing that al-Marri’s transfer from military to civilian custody rendered it moot. The transfer order (pdf) says al-Marri will be moved "as expeditiously as possible" from the custody of the military to the custody of the attorney general.
In the motion (pdf) to dismiss, acting Solictor General Edwin Kneedler said al-Marri's transfer, and the president's order declaring that he may no longer be detained by the military, provided the relief sought in al-Marri's original habeas petition. Kneedler also noted that Obama's change in policy means there is no longer any reasonable expectation that "the [alleged] wrong will be repeated."
“The court’s resolution of the question presented to it...would be no more than an abstract pronouncement on a set of facts that no longer applies to the petitioner,” Kneedler wrote.
In a statement, the American Civil Liberties Union, which represents al-Marri, said the legal issues raised in the case “are neither settled nor rendered moot" by the indictment.
“It is critical that the Court hears Mr. al-Marri's case and categorically rejects the notion that any president has the sweeping authority to deprive individuals living in the United States of their most basic constitutional rights by designating them 'enemy combatants,'" said the ACLU’s Jonathan Hafetz, lead counsel in case.