Obama Clings to Extraordinary Executive Power

When the Supreme Court tomorrow considers the government’s motion to dismiss the habeas corpus petition of Ali Saleh Kahlah al-Marri, it will find itself in tough position.

Now that the Obama administration has decided to transfer al-Marri out of the South Carolina Navy brig — where he’s been imprisoned without charge for the last seven years — and charge him in federal court, the habeas corpus petition the American Civil Liberties Union filed on al-Marri’s behalf would seem to be moot. After all, the ACLU had asked for their client to be transferred to civilian custody and charged in a regular court. The Department of Justice did just that Feb. 27, charging al-Marri under federal criminal law with providing material support to al-Qaeda.

The Obama Justice Department now asks the Supreme Court to dismiss al-Marri’s appeal. But if the court agrees, it would leave in place the court of appeals’ ruling that the federal government has the right to hold a lawful U.S. resident in prison without charge indefinitely, as long as the president designates him an “enemy combatant.” The court could, alternatively, vacate the Fourth Circuit’s decision, but that would leave the question undecided, except in the district of South Carolina where the court ruled that the government did not have that extraordinary power.

All of which raises the obvious question: Why Is the Obama administration clinging to the right to hold lawful U.S. residents indefinitely without charge on U.S. soil?

Given President Obama’s early announcements that he’ll close the prison at Guantanamo Bay and ban the use of torture, civil rights advocates were kind of of expecting that the power of the executive to deem a lawful U.S. resident like al-Marri — he was living in Peoria, Ill. when he was arrested in 2001) an “enemy combatant” based on untested, secret evidence and throw him into a military prison for years without charge or trial would be among the most obvious Bush-era executive powers that Obama would quickly jettison.

Apparently not. In asking the Supreme Court to dismiss al-Marri’s case, the Obama administration wrote that the possibility that al-Marri will be re-designated an enemy combatant and therefore subject to indefinite detention is a “subjective fear” that is “remote and speculative.” But still possible. As the government says, “even if petitioner were to be re-designated in the future, that re-designation would occur in a much different posture, under different circumstances … for instance, evidence adduced during petitioner’s criminal proceeding could affect the factual basis for any future detention.”

So the government reserves the right to use evidence from his criminal trial to re-classify al-Marri as an “enemy combatant” subject to indefinite detention?

The ACLU, which is representing al-Marri, is pleased that the Obama administration transferred him out of military custody. But now they’re left arguing that the Supreme Court should hear a case that, as a practical matter, doesn’t really exist anymore. Sure, the high court could decide that it’s capable of recurring, but the high court rarely wants to reach out and decide a major constitutional question that it doesn’t have to. The Obama administration’s transfer of Al-Marri means that now it doesn’t have to.

As Jonathan Haftez, the lead ACLU lawyer on the appeal, explained earlier today, the Obama Justice Department has “refused to defend an illegal policy. But they have not explicitly repudiated the domestic detention powers. They should have done that.”