ACLU Opposes Dismissal of al-Marri Case

When it transferred onetime enemy combatant Ali al-Marri from a military brig to the civilian justice system on Feb. 27, the Obama administration informed the Supreme Court and urged the justices to declare al-Marri's Supreme Court case moot. The transfer had come after al-Marri was indicted by an Illinois federal grand jury on charges of providing material support to a foreign terrorist organization. Scheduled for argument on April 27, al-Marri's case promised to be the latest in a series of cases testing presidential power to hold enemy combatants indefinitely and without being charged -- in this instance, when the person being held was legally in the United States and is being held on U.S. soil. "This case is moot," the Justice Department told the Court last week, as we reported here.

Not so fast, said al-Marri's lawyers at the American Civil Liberties Union in a brief filed at the high court today. The government has not met the "heavy burden" under mootness doctrine of demonstrating that what al-Marri was challenging in his suit could not happen again. The government's statements so far, according to the ACLU have not repudiated "the possibility that al-Marri will be returned to military custody and detained without charge." The government also has not renounced the Bush administration's position on presidential authority in the case, the ACLU states in a brief for which counsel of record is the ACLU's Jonathan Hafetz.

In a separate statement from the ACLU, Hafez says al-Marri's transfer represents "an important step toward restoring the rule of law," but did not render the Supreme Court case moot.

In its earlier filing, the Obama administration had insisted that because al-Marri is now in the civilian criminal justice system, he cannot prove any "non-speculative possibility" that he would be returned to the military system. The government motion acknowledges a "theoretical possibility" that he could be re-designated an enemy combatant, but asserts "there is no reason to think" that his case won't be adjudicated in the civilian system.

Following today's ACLU filing, the government has until tomorrow afternoon to reply.