In 2005, the government took a terrorism case it should have lost and made it go away. The Bush administration ducked Supreme Court review by transferring Jose Padilla out of military custody and bringing criminal charges against him in federal court. Now the Obama administration is using the same presto-chango tactic on the pending Supreme Court challenge of Ali Saleh Kahlah al-Marri.
Padilla was the U.S. citizen captured on American soil in 2002, thrown into a military brig, and held indefinitely without charges. Al-Marri is the legal resident captured on American soil in 2001, thrown into a brig, and also held indefinitely—until the Justice Department announced this week that it would charge him and move his case into the federal system. It's an understatement to say that the cases hit a constitutional nerve: They represent one of the Bush administration's most breathtaking expansions of executive power. That's saying something, as we're reminded by an amazing trove of newly released memos from the Justice Department's Office of Legal Counsel. In the name of national security, the memos make clear, Bush lawyers between 2001 and 2003 were ready to brush aside the Constitution's protections for free speech and against warrantless searches. They also had no use for Congress, which they told to butt out of all matters of interrogation, detention, and rendition—until the Supreme Court said otherwise.
Many aspects of the Bush administration's discredited policies are hard to hit back at through litigation. Plaintiffs run into the government's claims of state secrets and high-level immunity—arguments the Obama lawyers continue to make. Al-Marri's case, however, has already gotten to the high court, with argument slated for later this spring. There are solid legal grounds for the court to take al-Marri off its docket. But given the history of war-on-terror litigation of the last eight years, the better argument is for the justices to hear the case. It's past time for them to make clear that the power to pick someone up off the street and hold him indefinitely is a power that the executive branch does not have. Even if it's a nicer executive.
The government argues that al-Marri is moot. Since al-Marri is being charged and is not now designated as an enemy combatant—the status that leads to military detention without charges—there's no "live controversy," as the Constitution requires for a case to proceed in court. There's no injury, according to the Justice Department, that a court can redress. That's what makes a case moot, except if it's "capable of repetition but evading review." This means that the concerns at the center of the case could arise again, in a way that makes them hard for a court to address (usually because the facts on the ground are changing quickly).
Here, al-Marri does have a problem that could repeat itself. The government hasn't given up its power to turn him back into an enemy combatant in the future—much less repudiated its power to designate another suspect as such. The possibility that al-Marri will be back where he started, presumably if the criminal charges don't result in conviction, is very much alive.
In its brief calling on the Supreme Court to drop the case, the government calls its holding onto the enemy combatant card a "hypothetical contingency." It's also called having it both ways. The Justice Department gets to keep its weapon, so long as it stops pointing it at al-Marri's head for the time being. All due credit to the Obama administration for charging al-Marri and moving him into the federal civilian courts. Here's Human Rights Watch clapping, too. But the legal loose ends the government is trying to tuck out of sight are long and frayed.
Also dangling out there is the chance that al-Marri's former enemy combatant status could come back to bite him later, even if it's not formally re-invoked. In 2007, a Miami jury convicted Jose Padilla of conspiracy to maim, kill, or kidnap people abroad and of material support for terrorism. The conspiracy charges related to the plotting of attacks outside the United States, in Kosovo, Bosnia, and Chechnya. Padilla is being held in 24-hour solitary confinement at the supermax prison in Colorado where the Unabomber is. This is after years of military detention that eroded his sanity. Other people convicted of material support for terrorism aren't in supermax. Why is Padilla there? His placement papers from the Bureau of Prisons, which his lawyers have seen, say that Padilla had the "intent of carrying out acts of terrorism in the U.S." No jury ever made such a finding. The conditions of his imprisonment have everything to do with his former designation as an enemy combatant.
Because al-Marri could be converted back into an enemy combatant at the government's bidding, and because his former status could haunt him the way Padilla's has, this case isn't a slam-dunk for mootness after all. And if it's not, then whether the case stays before the Supreme Court comes down to prudential considerations, which means that the justices decide what's best. The government argues that the prudential grounds for dismissing al-Marri are strong. No one else is currently being detained as an enemy combatant on American soil, and the case raises exactly the kind of difficult and sensitive constitutional questions that the court should be cautious about addressing. This idea, that the court should address only hard constitutional questions when it must, is a bedrock doctrine that comes from a 1936 concurrence by Justice Louis Brandeis. It's the government's best argument. Don't muck around in the Constitution if you don't have to. Don't answer hard questions if you can avoid them. If it ain't broke, don't fix it.
But before you deny al-Marri his day before the Supreme Court, imagine what the court would do if the Bush administration, rather than its successor, were making these arguments for mootness and dismissal. We'd hope that the court would be suspicious, because the case would look like shades of Padilla—the government ducks Supreme Court review and continues merrily along its legally questionable way. The change of administration shouldn't force a different conclusion. Since 2001, the executive branch has been claiming that it has the power to indefinitely detain someone who was arrested on American soil while here legally, and put him away for as long as the president likes. That power is supposed to be based on the 2001 congressional Authorization for the Use of Military Force. In three go-rounds since 9/11, the Supreme Court has never set out clear parameters for the AUMF, read against the Constitution. We still don't know the boundaries of the power that statute gives the executive branch. New administration or no, it's time for the court—not the president—to tell us.