Wednesday, March 11, 2009

I told you so, Chapter Six

Just last week, at the urging of the Obama team, the Supreme Court declared moot the case of Ali Saleh Kahlah al-Marri.

Al-Marri is a citizen of Qatar who was residing lawfully in the United States under a student visa when he was grabbed, labeled an "enemy combatant" and a sleeper agent for al-Qaeda, and locked up in solitary for five years, without charges, in a Navy brig. In 2008 the Fourth Circuit Court of Appeals, the oppressor's darling, threw out a suit challenging his confinement on Constitutional grounds, ruling everything was just dandy, all properly Constitutional and stuff.

In December, the Supreme Court agreed to hear his appeal. On February 27, he was indicted by a federal grand jury on two charges related to terrorism, after which the Obama DOJ asked SCOTUS to declare his appeal moot. On Friday, the Court did so, thus enabling the government to avoid a decision that could have tossed out the entire concept of the authority of a president to, on their own say-so, imprison people without charge, without access to attorneys, without due process, and potentially without end.

If that sounds at all familiar, it's because it's exactly what was done with/to Jose Padilla. He, too, was seized as an "enemy combatant." He, too, was held in solitary for years. He, too, filed suit (or rather, others did it on his behalf). He, too, lost at the Fourth Circuit Appeals Court; he, too, appealed to the Supreme Court; and he, too, was moved into the regular criminal justice system at essentially the last minute and had his suit declared moot. What did someone call it the other day? "A case of déjà moo - I've seen this bullshit before."

One difference between al-Marri's case and Padilla's is that this time the Court vacated the Fourth Circuit ruling, meaning the case sets no judicial precedent that other courts can look to for guidance. However, since the Padilla ruling was not vacated and so is still precedent, that is very (very) little consolation. The government knows it:
While the government did not defend its power to detain Mr. Marri at present, it left open the possibility that he or others might be subject to military detention as enemy combatants in the future. “Any future detention - were that hypothetical possibility ever to occur - would require new consideration under then-existing circumstances and procedure,” the Justice Department told the court in a brief filed Wednesday.
That is, the administration - the Obama administration - is openly declaring that it still regards itself as free to continue to use the legal fiction of "unlawful enemy combatant" to confine whoever it chooses, whenever and however. As Glenn Greenwald noted,
Federal courts are excruciatingly slow. Even when someone's liberty is being unjustly deprived ... federal judges take their sweet time in issuing rulings: often many, many months - sometimes longer. ... Thus, it's virtually certain that it will take a case of this sort several years to wind its way through the various stages of judicial review, all while the detainee sits in prison with no trial.

This time factor alone vests the U.S. Government with the power to imprison legal residents or even U.S. citizens with no trial for at least a period of several years, as the detainee's constitutional challenge to the process-less imprisonment slowly winds it way through the federal courts. Before the U.S. Supreme Court can rule on whether that is constitutional, the Government can then finally bring charges against (or simply release) the detainee, and then argue to the Court (apparently, with success) that there is no reason for the Court to rule on the constitutionality of those actions because the case is now "moot." That's what just happened in the Al-Marri case (just like in the Padilla case), and there's no reason why it can't continue to happen that way. [Emphasis in original.]
I've thought for some time that not only judges, but the entire court system seems to think that time stops, that the whole world literally comes to a halt, as they ponder their decisions and they believe that the length of time they take to get and make rulings has no impact on the lives of the real people those rulings are about.

But for that very same reason, I can't concur with Greenwald's statement in his otherwise excellent piece (one echoed by Jonathan Turley) that "the Obama administration absolutely did the right thing in indicting Al-Marri." Not when that indictment served as a means to dodge a decision on the constitutionality of his imprisonment these past years.

I'm not saying he should be freed; if the DOJ honestly believes he is guilty of serious crimes, by all means go ahead and charge him. But I'd say hold off on filing them. Continue to hold him but in a civilian prison under improved conditions (since under the alternative of indictment he would still be imprisoned, this does not damage his situation) and don't file charges at least until after the oral arguments on his suit (which had been set for April) - during which you say that upon re-consideration, the White House finds it cannot continue to support the position that the president has the power to detain so-called "enemy combatants" outside of the criminal justice system. That is, urge the Court to make a ruling and to make it in favor of al-Marri.

But the fact is the Obama administration did not do that and would not do that. The Obama team wanted the case mooted, wanted to avoid a judgment which they feared they would lose. How do I know that? There is a legal principle called "capable of repetition, yet evading review" which creates an exception to mooting a case.
Basically, it means that even if a given controversy becomes moot (resolved) before the appeal is heard, the case will continue if the controversy is one that is "capable of repetition", meaning that the same situation can occur again. ...

The second part ("evading review") applies where the mootness is controlled entirely by one party. Here, the government made the case moot by voluntarily changing its own behavior. And the government has sole control over whether it goes back to it the earlier behavior or not.
(Link via Glenn Greenwald.)

The case being described there is actually a January 2007 motion by Bush administration urging that all lawsuits related to illegal wiretapping be dropped, but it fits here just as snugly. And in this case,
[t]he government did take pains to deny that it was manipulating the legal system, an accusation made against the Bush administration when it moved Jose Padilla from military detention to criminal court in 2007.

“The government’s agreement here that vacatur of the decision below would be appropriate,” the brief said, “conclusively demonstrates that the government is not attempting to preserve its victory while evading review.”
That is, the government was at pains to avoid raising that exception to mootness. And again, since the Fourth Circuit's Padilla decision was not vacated, vacating al-Marri doesn't seem to impact the government's legal position; it certainly doesn't impact its claims to authority to imprison "enemy combatants."

Which is why Emily Berman of the Brennan Center for Justice at NYU School of Law is going to be disappointed:
We applaud the Supreme Court for vacating a decision that accepted the extraordinary claim that the president has free-wheeling authority to detain indefinitely people living in the United States.... But we are still disappointed that the court did not take this opportunity to firmly clarify the limits of detention power. It's up to President Obama now to affirmatively renounce the domestic detention power claimed by his predecessor....
I'm sorry, Ms. Berman, but that's something it certainly appears he has no intention of doing.

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