Claiming in their brief that Ali Saleh Kahlah al-Marri's petition for Habeas Corpus is now "largely abstract" the Obama administration has moved that al-Marri's case be dismissed. Al-Marri's case was scheduled to go to the Supreme Court, and would test the legality government's definition of "enemy combatant" as it applied to people who are captured while legally residing on U.S. soil. The question at hand was, essentially, does the president have authority to imprison american citizens or legal residents without charging them or bringing them to trial. The government is arguing that since al-Marri is being charged, the case is moot. On no occasion has the Supreme Court “reached out to decide a case that would not affect the petitioner or any other individual," the brief reads. "Indeed, the Court has repeatedly declined to do just that.”
Not so, says the ACLU's Jonathan Hafetz, who has represented al-Marri in court. When al-Marri was first charged, Hafetz told me that "I don’t see anywhere in the DoJ statement that they’ve renounced the power to do this in the future," referring to the president's ability to detain people indefinitely as enemy combatants.
The ACLU wanted the case to go forward, because a favorable ruling might make it impossible for the government to detain people on American soil in this manner again. "The Supreme Court needs to make clear that the constitution prevents military detention of individuals in the country for suspected wrongdoing,” Hafetz said at the time. Before being charged, Al-Marri had been held in a military brig in South Carolina for six years.
When the Obama administration first charged al-Marri, there was some concern that they did so not out of respect for the law, but rather out of convenience: Because al-Marri is already on American soil, they won't have to deal with the political fallout of bringing him here. There was a chance the administration could also avoid the pending Supreme Court case, which could potentially curb the president's power--which by the way, when we're talking about the ability to detain people on American soil indefinitely without trial, is a good thing.
“As long as the president will be able to this, other people in the future will be imprisoned indefinitely,” Hafetz said.
-- A. Serwer
