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.