Posted by Orin Kerr:
The Al Marri Grant:
http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1228515972
I was glad to see the Supreme Court [1]grant cert in Al Marri: This is
an important issue and clarity is important, no matter what way the
Court eventually rules.
One catch is that I assume the Court would likely dismiss the case
without a decision if the incoming Obama Adminstration decides to
detain Al Marri on some ground other than that he is an "enemy
combatant." And it's hard to see why the new Administration wouldn't
do that. My recollection was that Al Marri was about to go to trial on
credit card fraud charges in federal court before he was transfered to
military custody. Unless there are some procedural issues that I'm not
thinking of, he can go back to being so charged.
That would seem to be the obvious preference for the new
Administration. They should charge Al Marri in federal court and try
to get a conviction with a long sentence to avoid these questions for
as long as possible. Such a choice would reinforce to the Justices
that there's a new Executive Sheriff in town; it would look good to
the world; it would make civil libertarians happy; it would keep Al
Marri off the streets; and it would avoid litigation a battleground
that the new administration didn't choose and presumably would rather
have avoided in the first place. Perhaps these issues will come up
again down the road, but maybe they won't: No need to fight a battle
like that now.
References
1. http://volokh.com/posts/1228510601.shtml
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