Obama Transfers Al-Marri to Federal Prison–And Moves to Dismiss Supreme Court Appeal

Created: February 27, 2009 16:58 | Last updated: July 31, 2020 00:00

Well, he doesn’t get to go free, but Ali Saleh Kahlah al-Marri — the last remaining “enemy combatant” who was picked up and held for the past six years without charge on U.S. soil — will finally have the privilege of being transferred to a real federal prison (from a South Carolina Navy brig) and charged in an actual U.S. federal court.

While that doesn’t mean that al-Marri will get out anytime soon, it does at least give him an opportunity to see and contest the charges against him. He will reportedly be charged with providing material support to Al Qaeda.

Today, President Obama issued an official presidential memorandum sealing the deal:

[I]t is in the interest of the United States that Ali Saleh Kahlah al-Marri be released from detention by the Secretary of Defense and transferred to the control of the Attorney General for the purpose of criminal proceedings against him.

One reason it’s in the interest of the United States is because it means the government can now ask the Supreme Court to dismiss the appeal pending in his habeas corpus case, as it’s said it will do. The appeal is a direct challenge to the government’s authority to hold a lawful U.S. resident indefinitely and without charge on U.S. soil.  Al-Marris’ lawyers at the American Civil Liberties Union have said they want to pursue the appeal to the Supreme Court, to obtain a ruling on the issue and “make sure that no American citizen or lawful resident will ever again be imprisoned without charge or trial.” However, it is difficult to imagine that the Supreme Court would choose to address the issue in al-Marri’s case, now that it no longer has to.

In as similar case, involving Jose Padilla, a US citizen held as an enemy combatant without charge by the Bush administration, the Supreme Court dismissed his appeal as soon as he was transferred to civilian custody for a criminal trial.

As a general matter, the Supreme Court will not decide a constitutional issue such as this one unless it is necessary to resolve a pending case.  The transfer of al-Marri from Defense Department to Justice Department custody would seem to render the issue moot. However, SCOTUSblog noted yesterday that al-Marri’s lawyers could argue that because the government could change its mind in the future and transfer al-Marri back to military custody, the Supreme Court should go ahead and decide the case.

As I’ve written before, that seems unlikely to me, but here’s SCOTUSblog’s learned analysis of how that scenario might play out.

Update:  The Department of Justice moved to dismiss Al-Marri’s appeal to the Supreme Court on Friday afternoon.