Supreme Court drops enemy combatant case

By GottaLaff

Background in my earlier post here. Moot:

The Supreme Court has decided not to hear the case of Ali al-Marri, the only enemy combatant still held inside the U.S.

Now that the Obama administration has decided to undeclare him an enemy combatant and put him on trial in regular federal court, the Supreme Court has declared the case moot.

Human rights groups pushed this, because they still wanted a ruling on whether a president could ever declare someone in the U.S. an enemy combatant. Legally speaking, Team Obama did well:

It will not be stuck with taking a position on whether a president has that authority.

Obama Clings to Extraordinary Executive Power

By GottaLaff

At TPC, most of us are pretty supportive of President Obama. But we are also not adverse to calling him out when we don't like what we see. This is one of those times:

Now that the Obama administration has decided to transfer al-Marri out of the South Carolina Navy brig — where he’s been imprisoned without charge for the last seven years — and charge him in federal court, the habeas corpus petition the American Civil Liberties Union filed on al-Marri’s behalf would seem to be moot. After all, the ACLU had asked for their client to be transferred to civilian custody and charged in a regular court. The Department of Justice did just that Feb. 27, charging al-Marri under federal criminal law with providing material support to al-Qaeda.

The Obama Justice Department now asks the Supreme Court to dismiss al-Marri’s appeal. But if the court agrees, it would leave in place the court of appeals’ ruling that the federal government has the right to hold a lawful U.S. resident in prison without charge indefinitely, as long as the president designates him an “enemy combatant.” The court could, alternatively, vacate the Fourth Circuit’s decision, but that would leave the question undecided, except in the district of South Carolina where the court ruled that the government did not have that extraordinary power.

All of which raises the obvious question: Why Is the Obama administration clinging to the right to hold lawful U.S. residents indefinitely without charge on U.S. soil? [...]

In asking the Supreme Court to dismiss al-Marri’s case, the Obama administration wrote that the possibility that al-Marri will be re-designated an enemy combatant and therefore subject to indefinite detention is a “subjective fear” that is “remote and speculative.” But still possible. [...]

So the government reserves the right to use evidence from his criminal trial to re-classify al-Marri as an “enemy combatant” subject to indefinite detention?

The ACLU, which is representing al-Marri, is pleased that the Obama administration transferred him out of military custody. But now they’re left arguing that the Supreme Court should hear a case that, as a practical matter, doesn’t really exist anymore. [...]

As Jonathan Haftez, the lead ACLU lawyer on the appeal, explained earlier today, the Obama Justice Department has “refused to defend an illegal policy. But they have not explicitly repudiated the domestic detention powers. They should have done that.”

Am I missing something?