The Al-Marri Case
Yesterday the Supreme Court, at the Obama administration's request, dismissed the Al-Marri case (which was scheduled for oral argument in April) as moot. Al-Marri had been held in military custody with no charges for almost six years until the Obama administration indicted him on criminal charges this month. In dismissing the case, the Supreme Court (with the consent of the Obama administration) also vacated the Fourth Circuit decision that had upheld the Government's right to detain al-Marri as an enemy combatant.
A number of people on the left -- including Glenn Greenwald and al-Marri's legal team at the ACLU -- are understandably upset that the Supreme Court will not hear this case. I share that disappointment. Without giving too much away, I too was very invested in this case. I devoted many a pro bono hour to it. And I too would have preferred that the litigation proceed and the Supreme Court issue a ruling definitively repudiating the detention power claimed by the Bush administration.
That said, I think that some of the criticism being leveled at the Obama administration for its handling of this case is unwarranted, particularly the charge that they are trying to do what the Bush administration did in the Padilla case. Padilla was charged criminally for the sole purpose of mooting his Supreme Court case and thereby preserving the detention power the Bush administration was asserting to hold, among others, al-Marri. There was no corresponding change in the administration's internal opinions and policies. When Obama took office, he ordered his DOJ and OLC officials to review al-Marri's case. Though we haven't seen the internal opinions, I'm fairly confident that Obama's OLC reached the conclusion (and memorialized it in an official opinion) that the President did not have the power to detain al-Marri militarily. Once that conclusion was reached, they could no long justify keeping him in custody. So they charged him criminally. That was the right decision, made for the right reasons.
And having made that decision, the next step was figuring out how to handle the Supreme Court case. Sure, the Obama administration could have joined al-Marri's attorneys in pushing to have the case heard by the Court, despite al-Marri's release from military custody. They could have filed a brief that more or less agreed with the positions being advocated by al-Marri's legal team (and his many amicus supporters).
Had that happened, though, it's still not clear that the Court would have ruled on the case. There's a high likelihood that the Court would have ultimately issued an opinion finding the case to be moot and refusing to rule on the merits. The Court generally avoids ruling on the merits of difficult cases when they have an excuse not to.
Moreover, it is important to remember that the current Supreme Court is a conservative court. Though my guess is that Justice Kennedy would have sided with the more liberal members of the court and ruled in favor of al-Marri, that outcome was not guaranteed. And some sort of mushy, fractured compromise opinion was also a real possibility. And whatever ruling was issued, it would have been THE controlling precedent on the issue of military detention, probably forever. So there was a real litigation risk here.
By seeking to dismiss the case and vacate the Fourth Circuit opinion, the Obama administration insured that this issue will not be ruled upon by this Supreme Court. And, as stated before, Obama's OLC has likely already issued internal opinions that more or less comport with the position of al-Marri's attorneys (and may well embrace positions preferable to those that the Supreme Court would have espoused in an opinion on this case).
So, long story short, it's not clear to me that allowing this case to play out further would necessarily have resulted in a better outcome for those us concerned about civil liberties and executive overreach. And now, if this issue ever comes before the Supreme Court again, it will be in a situation further removed from 9/11 and the Bush years and, with some luck, after years of successful prosecution of the "war on terror" without the president having asserted such radical power. And it might even be before a more liberal Supreme Court.
There is one criticism, however that I very much do agree with. It would indeed be far preferable if the Obama administration publicly renounced the detention power claimed by the Bush administration, rather than just refusing to assert it. They should release whatever internal opinions have been generated on this issue and let us know what their position really is. I see no justification for withholding that analysis from the public.
A number of people on the left -- including Glenn Greenwald and al-Marri's legal team at the ACLU -- are understandably upset that the Supreme Court will not hear this case. I share that disappointment. Without giving too much away, I too was very invested in this case. I devoted many a pro bono hour to it. And I too would have preferred that the litigation proceed and the Supreme Court issue a ruling definitively repudiating the detention power claimed by the Bush administration.
That said, I think that some of the criticism being leveled at the Obama administration for its handling of this case is unwarranted, particularly the charge that they are trying to do what the Bush administration did in the Padilla case. Padilla was charged criminally for the sole purpose of mooting his Supreme Court case and thereby preserving the detention power the Bush administration was asserting to hold, among others, al-Marri. There was no corresponding change in the administration's internal opinions and policies. When Obama took office, he ordered his DOJ and OLC officials to review al-Marri's case. Though we haven't seen the internal opinions, I'm fairly confident that Obama's OLC reached the conclusion (and memorialized it in an official opinion) that the President did not have the power to detain al-Marri militarily. Once that conclusion was reached, they could no long justify keeping him in custody. So they charged him criminally. That was the right decision, made for the right reasons.
And having made that decision, the next step was figuring out how to handle the Supreme Court case. Sure, the Obama administration could have joined al-Marri's attorneys in pushing to have the case heard by the Court, despite al-Marri's release from military custody. They could have filed a brief that more or less agreed with the positions being advocated by al-Marri's legal team (and his many amicus supporters).
Had that happened, though, it's still not clear that the Court would have ruled on the case. There's a high likelihood that the Court would have ultimately issued an opinion finding the case to be moot and refusing to rule on the merits. The Court generally avoids ruling on the merits of difficult cases when they have an excuse not to.
Moreover, it is important to remember that the current Supreme Court is a conservative court. Though my guess is that Justice Kennedy would have sided with the more liberal members of the court and ruled in favor of al-Marri, that outcome was not guaranteed. And some sort of mushy, fractured compromise opinion was also a real possibility. And whatever ruling was issued, it would have been THE controlling precedent on the issue of military detention, probably forever. So there was a real litigation risk here.
By seeking to dismiss the case and vacate the Fourth Circuit opinion, the Obama administration insured that this issue will not be ruled upon by this Supreme Court. And, as stated before, Obama's OLC has likely already issued internal opinions that more or less comport with the position of al-Marri's attorneys (and may well embrace positions preferable to those that the Supreme Court would have espoused in an opinion on this case).
So, long story short, it's not clear to me that allowing this case to play out further would necessarily have resulted in a better outcome for those us concerned about civil liberties and executive overreach. And now, if this issue ever comes before the Supreme Court again, it will be in a situation further removed from 9/11 and the Bush years and, with some luck, after years of successful prosecution of the "war on terror" without the president having asserted such radical power. And it might even be before a more liberal Supreme Court.
There is one criticism, however that I very much do agree with. It would indeed be far preferable if the Obama administration publicly renounced the detention power claimed by the Bush administration, rather than just refusing to assert it. They should release whatever internal opinions have been generated on this issue and let us know what their position really is. I see no justification for withholding that analysis from the public.
posted by A.L. at 1:10 PM
4 Comments:
it seems as if obama and his team always avoid any "overt" renunciation of Bush and company. someone should tell Obama the election is over.
Your analysis is reassuring. I think Obama was prudent to avoid a binding ruling that could have the high court second guessing his decision to try this detainee in court.
A.L. - Many thanks for your pro-bono work on this case. At least you put your money where your mouth is.
I agree with the earlier anonymous poster who said that Obama is avoiding any renunciation of Bush. Actually it is even worse than that. In several instances Obama is actually endorsing the Bush positions which are strongly anti civil liberties (so much for "change").
God bless Glenn Greenwald who has been a pit bull standing up for civil rights and the rule of law. He has been superbly tenacious on this issue, and at times it seems like he is the only honest journalist in our nation.
I applaud Obama's pragmatic approach. In this politically charged atmosphere, both the progressive purists like Glenn Greenwald and the Republicans are determined to bog this country down in ideological battles that produce no forward momentum.
It's far, far wiser to pursue the best of what is possible, rather than bash our collective national head against the brick walls of purist demands.
It takes time and consensus building to turn our bulky ship of state. Trying to reverse course suddenly runs the risk of capsizing and, thus, complete failure.
The critics from both the right and the left, who offer their perfect plans without fear of having to answer for the consequences, fill me with dread. The cacophany of their strident complaints is drowning out the sound of a ship of state slowly turning on the waves. The turn has begun, but railing against its imperfections invites ultimate failure and a return to the Bush-Cheney course.
I'm waiting to hear from the critic who recognizes the stark reality of what is politically possible in a sharply divided nation.
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