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.