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The Supreme Court and Al-Marri: No Virtue Now in Judicial Passivity

JURIST Guest Columnist Bruce Miller of Western New England College School of Law says that despite the Obama administration's intent to criminally charge Ali Al-Marri in a US court, his challenge to his detention as an "enemy combatant" continues to present a live case which the Supreme Court is obliged to adjudicate...

On Friday, February 27th, the Obama administration announced its intention to charge Ali Al-Marri, a legal resident of the United States, with the crime of material support for terrorism. This decision will end, temporarily at least, Al-Marri's more than half-decade in military detention as an enemy combatant in the Navy Brig at Charleston, South Carolina. Simultaneously, and predictably, the administration also moved to dismiss as moot Al-Marri's Supreme Court appeal of a Federal Court of Appeals decision upholding that detention, arguing that there is no longer a dispute between Al-Marri and the government. The Court should quickly deny that motion and retain the appeal on its docket.

Although our government's military detention of Al-Marri is suspended for the duration of his criminal prosecution, his challenge to that detention nonetheless continues to present a live case, within the meaning of Article III of the Constitution, a case which the Court is obliged to adjudicate. The mootness doctrine, famously included among the "passive virtues" described by Alexander Bickel nearly fifty years ago, is a judicially crafted instrument of prudence, which permits the Supreme Court to dismiss a case if the dispute between the parties that triggered it ceases to exist. Mootness, along with a small passel of kindred tools of judicial avoidance — the ripeness, generalized grievance, third party standing and prudential political question doctrines — allow the Supreme Court great leeway to control the timing and context for its exercise of the power and duty of Constitutional judicial review. Professor Bickel defended these doctrines as enabling the Court to defer resolution, especially of "momentous" Constitutional issues, to a time when the political controversy surrounding them has abated, making a principled rather than expedient decision more likely. Consistent with this prudential, hence inherently discretionary, purpose, the mootness doctrine is limited by several important judge-made exceptions, many of which apply to Al-Marri's case.

The first of these exceptions excludes from dismissal as moot cases in which a plaintiff seeks relief from injuries which are "capable of repetition, yet evading review." Though narrow in conception, because it applies only when the plaintiff him/herself faces a credible threat of being injured a second time, this exception perfectly captures Al-Marri's situation. He has already once been charged with federal crimes since his detention commenced in late 2001. These charges of credit card fraud and identity theft were dismissed with prejudice by the Justice Department in 2003 when Al-Marri's motion to suppress evidence against him secured from other detainees threatened to expose the Bush administration's interrogation methods to judicial scrutiny. It was then that the Bush administration conveniently decided to designate Al-Marri an enemy combatant and transfer him to military custody. Now, with Supreme Court review of that designation imminent, the Obama administration has determined to move Al-Marri back into the civilian jurisdiction of the Justice Department, again seeking to evade judicial review. Is Al-Marri's designation as an enemy combatant capable of repetition? Of course it is, unless the Obama administration is prepared to acknowledge that it has no statutory or Constitutional power to reclassify him as enemy combatant and again subject him to military detention if the new criminal case against him does not turn out to the administration's liking.

The second mootness exception applicable to Al-Marri's appeal is the voluntary cessation doctrine. This exception protects from dismissal as moot challenges to policies which the government abandons in response to litigation but remains free to resume as soon as the pressure of possible judicial invalidation lifts. In Al-Marri's case, the policy in question is the President's claim of authority indefinitely to detain without charge as enemy combatants legal resident aliens arrested in the United States who have never fought against with the United States in a foreign theatre of war. Even assuming the Obama administration has permanently abandoned this claim as to Al-Marri himself, there is no evidence, at least as yet, that it forswears this vast assertion of executive power as a general matter, or that it will not invoke it as to others if and when it deems such detention necessary or expedient. The Supreme Court has been leery of crediting far clearer evidence of official abandonment of a challenged practice than anything offered by the Obama administration with respect to the military detention policy at issue in Al-Marri. Fifteen years ago, in an opinion by Justice Thomas, the Court refused to dismiss as moot a challenge to a city's affirmative action ordinance for municipal contracts even though the ordinance had been repealed and supplanted by a successor policy after the Court had granted certiorari. The consequences of a failure by the Supreme Court to apply the voluntary cessation exception to mootness to Al-Marri's appeal, when the government has neither repealed nor replaced the policy under which he has been detained, are, potentially at least, momentous in the ways Professor Bickel may have envisioned. The Court of Appeals' opinion upholding the legality of Al-Marri's detention announced forthrightly that the authority of the President to detain legal resident aliens as enemy combatants applies equally to United States citizens. So if the Obama administration has voluntarily ceased to apply this authority to Al-Marri, but remains free to reinvoke it whenever it sees fit, the result is a breathtakingly broad but judicially unexamined Presidential authority to subject anyone and everyone in the United States to indefinite military detention without trial.

The Bush administration similarly and successfully evaded an earlier challenge to its authority to impose indefinite military detention on an American citizen, Jose Padilla, by bringing criminal charges against him while his petition for certiorari was pending in the Supreme Court. But in this respect, Al-Marri's situation is, like the affirmative action case noted above, different from Padilla's. The Supreme Court has already granted Al-Marri's petition, signaling its recognition of the importance of the issues presented by his case. Chief Justice Rehnquist recognized the significance of this distinction twenty years ago when he urged the Court to abandon the mootness doctrine altogether in cases already under review when the "mooting" events occur. The Chief Justice pointed out that the Court's "resources-the time spent preparing to decide the case by reading briefs, hearing oral arguments and conferring-are squandered in every case in which…we may not reach the question presented". Al-Marri's appeal provides a textbook example of the concerns which animated the late Chief Justice. Because of the extraordinary scope of the Court of Appeals' authorization of military detention, his case presents questions of the gravest significance for the future of civil liberties, literally, in the United States. The Court's investment in resolving them should not now be thrown away.

Seven and a half years have passed since the terrifying attacks of September 11. Al-Marri has been in American custody, without any realistic prospect for resolution of his fate, for all but three months of that time. A new President, one who has publicly opposed many of the detention policies of his predecessor, has been elected and inaugurated. Surely enough time has now elapsed to permit a principled, non-expedient, judicial assessment of the issues raised by his case. The passive virtues of the mootness doctrine provide no support for the Obama administration's effort to prevent the Supreme Court from hearing Al-Marri's appeal. To the contrary, if the Court now opts for judicial passivity in the face of Al-Marri's treatment by our government, the chief result will instead be that the principle of military detention of American citizens and legal residents will continue, per Justice Jackson's dissent in Korematsu v. U.S., to "lie about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need."

Bruce Miller is Professor of Law at Western New England College of Law

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