The government’s brief in the Al-Marri case is due March 23. The case raises the question whether the President, exercising his authority as commander-in-chief, can detain a suspected Al-Qaeda collaborator indefinitely and without charging him for any crime. In the earlier Hamdi decision, the Supreme Court upheld holding an individual seized on the battlefield in Afghanistan for the duration of that conflict — following the accepted treatment of prisoners of war under the international laws of war, but it also said that as the conditions began to differ markedly from conflicts that traditionally have had recognized endings this understanding may “unravel.” President Bush asserted that the war on terror will last indefinitely, beyond his lifetime. A number of President Obama’s appointees have stated in Senate testimony that the United States is at war with terrorists. So the question is, can the government substitute “the war on terror” for the “war in Afghanistan,” such that the President can detain someone for the duration of that conflict? The al-Marri case tests that proposition. Al-Marri was picked up in Peoria, Illinois, never having been on the battlefield in Afghanistan or Iraq, and was accused of participating in an al-Qaeda plot.
In a move that was not unexpected, it is now being reported in the Washington Post, the New Yorker and the New York Times that al-Marri has been indicted — probably under the material support statute — and will stand trial in federal criminal court. This means he is no longer being held indefinitely. This shift will enable the government to suggest to the Supreme Court that the case is moot, meaning there is no longer a live case or controversy, and the Court should drop the case before deciding the merits of the question of presidential authority. Watch for that brief to be filed next month. Civil liberties groups, who think they have a strong argument that the power of indefinite detention is not one that the president possesses outside of the context of a traditional armed conflict, will most likely oppose that suggestion, contending instead that the legal dispute over the president’s power is capable of arising again. If the case can be mooted by the government switching the defendant into the criminal justice system on the eve of argument, that maneuver can be repeated in the future, and the legal question may evade review indefinitely. If the Court is sympathetic to that argument, there is precedent for it to hear the case despite the switch in al-Marri’s status.
Tags: commander-in-chief, detention
