The Al Marri Grant:
I was glad to see the Supreme Court grant cert in Al Marri: This is an important issue and clarity is needed, no matter what way the Court eventually rules.
One catch is that I assume the Court would likely dismiss the case without a decision if the incoming Obama Adminstration decides to detain Al Marri on some ground other than that he is an "enemy combatant." And it's hard to see why the new Administration wouldn't do that. My recollection was that Al Marri was about to go to trial on credit card fraud charges in federal court before he was transfered to military custody. Unless there are some procedural issues that I'm not thinking of, he can go back to being so charged.
UPDATE: Commenters point out that the charges against Al Marri were dismissed with prejudice, so the old charges could not be reinstanted. Instead, some new charges would need to be filed. The rest of this post assumes that the government has evidence to support charges for some other crime.]
That would seem to be the obvious preference for the new Administration. They should charge Al Marri in federal court and try to get a conviction with a long sentence to avoid these questions for as long as possible. Such a choice would reinforce to the Justices that there's a new Executive Sheriff in town; it would look good to the world; it would make civil libertarians happy; it would keep Al Marri off the streets; and it would avoid litigation a battleground that the new administration didn't choose and presumably would rather have avoided in the first place. Perhaps these issues will come up again down the road, but maybe they won't: No need to fight a battle like that now.
Incidentally, one interesting question is why the Court granted now if they knew (as they must have) that the new Administration might take a different course. One reason is that the grant forces the new Administration to act soon. Another possibility — and this is one I will have to think about — is that a change in the Administration's view could let the Court GVR, "grant vacate and remand," taking the lower court decision off the books for now in light of the SG's change of position.
One catch is that I assume the Court would likely dismiss the case without a decision if the incoming Obama Adminstration decides to detain Al Marri on some ground other than that he is an "enemy combatant." And it's hard to see why the new Administration wouldn't do that. My recollection was that Al Marri was about to go to trial on credit card fraud charges in federal court before he was transfered to military custody. Unless there are some procedural issues that I'm not thinking of, he can go back to being so charged.
UPDATE: Commenters point out that the charges against Al Marri were dismissed with prejudice, so the old charges could not be reinstanted. Instead, some new charges would need to be filed. The rest of this post assumes that the government has evidence to support charges for some other crime.]
That would seem to be the obvious preference for the new Administration. They should charge Al Marri in federal court and try to get a conviction with a long sentence to avoid these questions for as long as possible. Such a choice would reinforce to the Justices that there's a new Executive Sheriff in town; it would look good to the world; it would make civil libertarians happy; it would keep Al Marri off the streets; and it would avoid litigation a battleground that the new administration didn't choose and presumably would rather have avoided in the first place. Perhaps these issues will come up again down the road, but maybe they won't: No need to fight a battle like that now.
Incidentally, one interesting question is why the Court granted now if they knew (as they must have) that the new Administration might take a different course. One reason is that the grant forces the new Administration to act soon. Another possibility — and this is one I will have to think about — is that a change in the Administration's view could let the Court GVR, "grant vacate and remand," taking the lower court decision off the books for now in light of the SG's change of position.
I disagree regarding keeping civil libertarians happy. Such a move would say that times have not changed since the same thing happened with Jose Padilla. I hope that they wait until after the Supreme Court hears the case and rules on it for the same reason that I hope Judge Wu denies the rule 29 motion in US v. Lori Drew, but that the convictions are overturned on appeal. Sometimes the precedent is worth the wait and the damage to the system that will occur if these precedents are allowed to stand.
Timing is everything.
Interesting. I did some digging and you seem to be correct.
From the CNN article
Seems like there is no perfectly easy option for Obama....
If the Adminstration does have clear and convincing evidence that Al-Marri was part of a conspiricy to violate the laws of war shouldn't he be tried, under the laws of war, per Supreme Court precedent, rather that just finding some other convenience charge that skirts the issue?
Any issue with speedy trial?
I dunno, but I would hope that the Bushies' "god forbid we get a legal interpretation from the high Court" approach to enforcing the laws, will soon be a thing of the past.
I believe David Addington's strategy was "we're going to push and push until someone makes us stop," not "god forbid we get a legal interpretation from the high Court."
I tend to disagree. If Obama doesn't think he needs to detain people like al-Marri indefinitely, then he's simply not going to do it. No point in going through a court battle just so the Supremes can decide that you're not allowed to do something you didn't want to do anyway.
I also agree with Prof. Kerr that the Administration's attitude was not "we're in a state of legal uncertainty, and we like it that way," but that "unless and until the Supreme Court declares what the law is, we get to declare what the law is." Although to some extent, it's a distinction without a difference.
How do you feel about the growing usage of the Orin postulate amongst the larger Volokh community? Could we see a debut in other fora?
Like most bullies, Addington (or someone in the Administration) was quick to back down when the challenge actually came.
I can't help but notice that neither the poster nor any commenters seem to want to consider that Al Marri might not actually be guilty...
It is more than that, it seems. It looks like the Bush Administration asked for (and got) the previous charged dismissed with prejudice. This basically means no, he can't go back to the old charges because that is what "with prejudice" means.
The flaw in your attempt at wit is that Obama didn't commit credit card fraud. However, fraud was indeed committed by the many righty bloggers who donated to Obama using phony names. This was fraud even though Obama eventually got the correct name from the bank. (And he did indeed eventually get the correct name from the bank, at the time that he collected the money from the bank, because your bank knows the real name associated with your card number, even if you attempted to use some other name when you posted the transaction on Obama's web site.) But every bit helps, so thanks for the money.
even i have a hard time believing someone would be this stupid.
Maybe you'll also have a hard time believing what the law says:
In particular, see U.S.C. 441f:
So the bloggers who thought they were being cute were breaking federal law, and encouraging others to do the same.
I think violation of 441f is a felony, and subject to 2 years of imprisonment.
If al Marri was captured overseas, he could be held as a prisoner of war (generic not GC) for the duration of the conflict and could be interrogated for intelligence.
However, because al Marri successfully invaded and operated in the United States, he cannot be held as a POW and instead transforms into a criminal suspect with a right to silence during interrogation and must either be convicted or released back onto our streets.
This is more than a little insane. Talk about your incentives to encourage the enemy to invade and operate inside our nation. Then again, Justice Kennedy has not exactly been rational in having the judiciary assume the war powers of the President and Congress.
(i) whether there can be a state of war with a non-sovereign entity;
(ii) whether a person detained off the field of battle and not forming part of the armed forces of an opposing state may be detained as a prisoner of war;
Since the so-called "war on terror" is a juridical nonsense one must look to the criminal law for remedies if there are any which can be proven to the requisite standard.
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