Three Wise Men

Via ScotusBlog, the ACLU is reporting that the Obama administration is planning to take Ali Saleh Kahlah al-Marri out of custody at the naval brig in South Carolina where he is being held and try him in the criminal courts (h/t Adam.) The significance of this move lies in the fact that in doing so, the Obama administration would effectively moot the case that Al-Marri has pending before the Supreme Court, which is scheduled to hear arguments at the end of April. Were the Supreme Court to dismiss the matter as a result, this would leave unanswered one of the greatest legal question posed by the Bush administration during the "war on terror": whether the President has the authority to order the indefinite detention of terrorist suspects captured on U.S. soil. Naturally Al-Marri and the ACLU would prefer that this not happen, as this would effectively destroy any opportunity for the Supreme Court to limit the executive authority to detain individuals indefinitely. Although it is not unheard of for the Supreme Court to hear cases that are moot (Roe v. Wade is one example) they are loathe to do so, and I don't think there's a high likelihood that Al-Marri's case will long survive his transfer to the criminal justice system.

Just last week I discussed Jane Mayer's "The Hard Cases", where she wrties at length about the unique difficulties presented by detainees like Al-Marri. In it she explored the possibility of the creation of a special national security court, or the possibility of "preventive" detention. It would seem that if the Obama administration is declining to have Al-Marri's case heard before the Supreme Court, they are also demurring on an opportunity to defend their authority to order indefinite detention, as well as retreating from the possibility of a national security court that could order something like preventive detention. I for one am pleased that Al-Marri will get the criminal trial he should've had after he was arrested in 2001 (even with the difficulties posed by the fact that his original case was dismissed with prejudice.) But what the Obama administration intends to signal about the breadth of executive authority with this move is unclear, at least to me.