Preventing a Judicial Ruling on the Power to Imprison without Charges

After being held in captivity as an accused "enemy combatant" by the U.S. Government for more than five years
without charges or a trial of any kind, Ali Al-Marri -- who was a legal
resident in the U.S. and was on U.S. soil at the time of his detention
-- was, two weeks ago, finally indicted and charged with various crimes in a federal court. The
indictment came as the U.S. Supreme Court was set to rule whether the
Constitution allows the President to imprison legal residents inside
the U.S. as "enemy combatants" and keep them imprisoned indefinitely
with no charges or trial (both sides of the appellate court decision agreed that the legal analysis is the same for the power to imprison U.S. citizens). But now there will be no such ruling, because the Obama administration (over the objections of Al-Marri's ACLU lawyer) successfully convinced the Court to dismiss the case
on the ground that the indictment of Al-Marri renders the question
"moot." This critical question will thus remain unresolved by
the Supreme Court.

What just happened in the Al-Marri case is
(with one important exception) a virtual repeat of what the U.S.
Government (under the Bush administration) did in the Jose Padilla
case. The Bush administration arrested Padilla, a U.S. citizen, on
U.S. soil; accused him of being an "enemy combatant"; and then
imprisoned him for the next three-and-a-half years without charges or a
trial of any kind (even without contact with the outside world,
including a lawyer). Just as Padilla's case was about to be heard by
the U.S. Supreme Court, which was set to rule on whether the
Constitution allows a President to order American citizens imprisoned
in military brigs with no trial, the Bush DOJ indicted Padilla and then
convinced the Supreme Court to refrain from ruling on the issue because Padilla's indictment rendered the question "moot." The critical question thus remained unresolved by the Supreme Court.

It
doesn't exactly take great powers of observation to see the pattern
here. Federal courts are excruciatingly slow. Even when someone's
liberty is being unjustly deprived -- i.e., when they're being
held in a cage with no trial -- federal judges take their sweet time in
issuing rulings: often many, many months -- sometimes longer. Federal
judges are guaranteed life tenure; have virtually no oversight or
supervision; essentially rule unchallenged over their little fiefdoms;
and thus have no real incentive to resolve cases quickly. Some work
hard, and many don't. They get to cases when they get to them. 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.

The
Obama administration absolutely did the right thing in indicting
Al-Marri. Continuing to imprison him without charges was an ongoing
disgrace. And the Obama administration's consent to have the
Supreme Court vacate the Fourth Circuit's horrendous decision upholding this power is commendable (though another Fourth Circuit ruling, in the Padilla case, largely upheld the President's detention powers, and that was left standing by the Supreme Court when it dismissed Padilla's case (and Al-Marri's) and thus remains good law).

But
there were numerous steps the Obama administration could have and
should have taken to prevent a repeat of the Padilla travesty,
including: (a) explicitly renouncing the Bush administration's view
that the President possesses this radical power (the super-transparent
Obama DOJ refuses to comment on its view in that regard even though Candidate Obama explicitly rejected a similar theory
-- see Questions 5 and 10); and (b) urging the Supreme Court to resolve
the question notwithstanding Al-Marri's indictment, as Al-Marri's
lawyers requested, on the ground that it meets one of the judicially established exceptions to the "mootness" doctrine. The Obama administration did neither: instead, it explicitly refused to renounce this power while simultaneously ensuring that the Supreme Court would -- once again -- refrain from ruling on its constitutionality:

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.

This
action means not only that Obama could imprison legal residents or even
American citizens as "enemy combatants," but could even re-declare
Al-Marri himself to be an "enemy combatant" if he's acquitted in his
trial.

It's disturbing that this question remains unresolved particularly given that key Obama appointees -- including Solicitor General Elena Kagan and White House Counsel Gregory Craig
-- have openly suggested that, at least with regard to foreign
nationals, the "War on Terror" paradigm empowers the President to view
the world as a "battlefield" and thus imprison people without charges
as "enemy combatants." This action by the Obama administration should
also (at least in a rational world) put to rest the painfully
sycophantic claim that the only reason the Obama DOJ is embracing
radical Bush-era legal positions is because they secretly hope to lose
in court and thereby create good judicial precedent. If that were
really their secret, noble goal, then they would have urged the U.S.
Supreme Court here to rule on Al-Marri's claims (which many legal
observers expected would end in Al-Marri's favor) -- not urged the
Court to refrain from ruling, thus shielding this asserted power from ultimate judicial scrutiny.

There's
no reason to assume that the Obama administration intends to exercise
the power to imprison legal residents or U.S. citizens without charges,
as the Bush administration did. Unless and until they do that, they
haven't done it. And with Al-Marri's indictment, there are now no
U.S. citizens or legal residents being held as "enemy combatants," so
that's an important step.

But, for obvious reasons, it is both
unjust and dangerous to preserve this power by engaging in maneuvers
(whether intended or not) to block the Supreme Court from finally
ruling on the constitutionality of this ultimately tyrannical weapon.
Thus far, in the realm of the Constitution and civil liberties, the
primary attribute of the Obama administration is to do everything in
its power to protect and preserve the President's ability to assert the
radical powers invented and seized by the Bush administration,
independent of whether they actually intend to use those powers at some
point.

That behavior seems exactly (and disturbingly)
consistent with what White House Counsel Greg Craig -- in the context
of explaining why they wanted to avoid a judicial ruling on the
executive privilege dispute between the Bush White House and Congress
-- described to The New York Times' Charlie Savage as the administration's guiding principle when it comes to executive power:

The
president is very sympathetic to those who want to find out what
happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency.

There
is, of course, no real way to reverse the radically expanded powers of
the executive without taking steps to "undermine or weaken the
institution of the presidency" -- exactly that which Craig expressly
vowed Obama would not do. So far, they seem to be adhering quite
faithfully to that strange vow.

* * * * *

Quite relatedly: it's difficult to recall an article from a major newspaper being as blatantly wrong as this article, from USA Today, purporting to describe what happened in the Al-Marri case (h/t sysprog):

It
would be a rather significant news event if the Supreme Court had, in
fact, decided that the President "has the authority to detain people
without charge," though I suppose it's a sign of the times that a
reporter for a major newspaper could believe that this happened (when
it plainly didn't) and then note it so casually. What makes this item
so particularly reckless in its absolute inaccuracy is that the link in
the first paragraph is to this Washington Post article, which makes as clear as the English language permits that exactly the opposite happened ("The Supreme Court yesterday vacated
a lower court's ruling that the president has the right to indefinitely
detain a legal U.S. resident as a terrorism suspect, and put off a decision on one of the most expansive legal claims of the Bush administration").

As
we all know, it's quite terrible how there are all these Internet blogs
now that report things without any factual checks, unlike our nation's
great establishment media outlets, which have mutliple layers of
editors and checks that prevent reckless, inaccurate and unreliable
reporting.