Should the Supreme Court hear al-Marri?

The law, lawyers, and the court.
March 3 2009 4:45 PM

Here We Go Again

Obama shouldn't get away with the same tricks in al-Marri that Bush got away with in Padilla.

Ali Saleh Kahlah al-Marri. Click image to expand.
Ali Saleh Kahlah al-Marri

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.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

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.

Advertisement

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.

TODAY IN SLATE

The World

How Canada’s Shooting Tragedies Have Shaped Its Gun Control Politics

Where Ebola Lives Between Outbreaks

Gunman Killed Inside Canadian Parliament; Soldier Shot at National Monument Dies

Sleater-Kinney Was Once America’s Best Rock Band

Can it be again?

Paul Farmer: Up to 90 Percent of Ebola Patients Should Survive

Is he right?

Science

“I’m Not a Scientist” Is No Excuse

Politicians brag about their ignorance while making ignorant decisions.

Technology

Driving in Circles

The autonomous Google car may never actually happen.

In Praise of 13th Grade: Why a Fifth Year of High School Is a Great Idea 

PowerPoint Is the Worst, and Now It’s the Latest Way to Hack Into Your Computer

  News & Politics
Politics
Oct. 22 2014 9:42 PM Landslide Landrieu Can the Louisiana Democrat use the powers of incumbency to save herself one more time?
  Business
Continuously Operating
Oct. 22 2014 2:38 PM Crack Open an Old One A highly unscientific evaluation of Germany’s oldest breweries.
  Life
Gentleman Scholar
Oct. 22 2014 5:54 PM May I Offer to Sharpen My Friends’ Knives? Or would that be rude?
  Double X
The XX Factor
Oct. 22 2014 4:27 PM Three Ways Your Text Messages Change After You Get Married
  Slate Plus
Tv Club
Oct. 22 2014 5:27 PM The Slate Walking Dead Podcast A spoiler-filled discussion of Episodes 1 and 2.
  Arts
Brow Beat
Oct. 22 2014 10:39 PM Avengers: Age of Ultron Looks Like a Fun, Sprawling, and Extremely Satisfying Sequel
  Technology
Future Tense
Oct. 22 2014 5:33 PM One More Reason Not to Use PowerPoint: It’s The Gateway for a Serious Windows Vulnerability
  Health & Science
Wild Things
Oct. 22 2014 2:42 PM Orcas, Via Drone, for the First Time Ever
  Sports
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.