Will SCOTUS Really Hear the Al-Marri Case? Not so fast…

Created: December 06, 2008 10:57 | Last updated: July 31, 2020 00:00

By now you’ve probably heard that the Supreme Court has decided to hear the case of the sole legal U.S. resident detained indefinitely — yes, that means potentially forever — without charges, right here on U.S. soil.  All because President Bush decided on his own authority, that this 28-year-old father of five, who was then living quietly in Peoria, Ill., was a dangerous associate of Al Qaeda. No proof required, and none has been offered in any court of law.

As Matthew DeLong noted earlier, the Supreme Court on Friday agreed to hear Ali Saleh Kahlah al-Marri’s appeal, which questions whether the president really has the authority to hold U.S. residents indefinitely without charge. Al-Marri has been detained, mostly in solitary confinement, at a Navy brig in South Carolina since June 2003.

But there’s a good chance that the Supreme Court will never get to hear al-Marri’s appeal and rule on this critical constitutional question.  That’s because, as George Washington University law professor Jonathan Turley explained on MSNBC’s “The Rachel Maddow Show” Friday, the Bush administration may decide to transfer al-Marri to a regular prison and charge him as a criminal — purely to keep the issue from reaching the Supreme Court, where the Bush administration may well lose the case.

That’s what the Bush administration did in the case of Jose Padilla, a U.S. citizen also classified as an “enemy combatant,” who was transferred to the criminal justice system so no court could rule on the legality of the administration’s actions.

The other likely scenario is that a new Obama administration, which will presumably be gung-ho about preserving civil liberties, will take over in January and reverse the government’s position in the case and decide that al-Marri cannot be held indefinitely as an enemy combatant without charges after all. The Supreme Court probably wouldn’t hear oral arguments in this case until spring, and it’s hard to imagine that the new Justice Department, under Attorney General-nominee Eric Holder — who has  made strong statements about the illegality of Bush’s detention policies — is going to defend President Bush’s executive decision to hold al-Marri indefinitely.

While that would be a good outcome for al-Marri, it could be a loss for civil libertarians, who are hoping that the U.S. Supreme Court will rule definitively that the president of the United States does not have the authority to detain a U.S. resident in a U.S. prison indefinitely without charge, without having to prove to some federal judge somewhere that he poses a real danger.