BREAKING: SCOTUS Dismisses Al-Marri Case

NOTE: Several updates below.

Reuters reports that:

The court dismissed Marri’s case on whether terrorism suspects can be held without charges in the United States after the Obama administration last week obtained a federal court indictment accusing him of providing material support to al Qaeda.

The justices in a brief order sided with Obama administration attorneys, who told the high court that Marri’s pending legal challenge had been rendered moot by his indictment.

I’m awaiting a statement from the ACLU which I’ll post soon as I get it. SCOTUSblog says:

The Supreme Court on Friday wiped out a lower court ruling that gave the President authority to detain indefinitely individuals living in the United States as terrorism suspects. The order also approved transfer of Ali Saleh Kahlah al-Marri from military custody to civilian custody for a trial on criminal charges in civilian court.

Slip opinion has not yet been posted on the SCOTUS website. Soon as I have more on this, it will be posted here.

UPDATE:  Here’s the full text of the ORDER, via a DOC file from SCOTUSblog:

 (ORDER LIST: 555 U.S.)





                       The application of the Acting Solicitor General respecting the custody and transfer of petitioner, seeking to release petitioner from military custody and transfer him to the custody of the Attorney General, presented to The Chief Justice and by him referred to the Court is granted.  The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss the appeal as moot. See United States v. Munsingwear, Inc., 340 U.S. 36 (1950).

For those interested, the Munsingwear case cited above can be read in its entirety here.

UPDATE #2:  Thinking there might be a question or two on this, what the order above means is that the Fourth Circuit decision that the president can detain a defendant indefinitely now can no longer be used as a precedent for future action.  Meaning it cannot be relied upon to provide legal cover in the future.  

For more on vacating judgments, albeit more in the civil context than criminal, this NYtimes article does a good job laying out the particulars, including:

A vacated decision is not literally destroyed; it can still be found in the courthouse where it was first issued, if anyone knows to look for it there. But its effect as a precedent has been wiped away.

That’s as good a lay definition of vacating a decision as I’ve seen.

UPDATE#3: SCOTUSblog has added to their analysis, and I agree with their assessment on vacating the opinion from the 4th Circuit being a good thing.  ACLU statement will get added here soon as I get it. 

UPDATE #4:  ALCU issued their press release on this — you can read it in full here.  Attorney Jonathon Hafetz had this to say:

While we would have preferred a Supreme Court ruling that U.S. citizens and lawful residents detained in the U.S. cannot be held in military custody as ‘enemy combatants’ without charges or trial, the Supreme Court nonetheless took an important step today by vacating a lower court decision that had upheld the Bush administration’s authority to designate al-Marri as an ‘enemy combatant.’ Congress never granted the president that authority and the Constitution does not permit it. We trust that the Obama administration will not repeat the abuses of the Bush administration having now chosen to prosecute Mr. al-Marri in federal court rather than defend the Bush administration’s actions in this case.

More on this at the ACLU blog.

17 Responses to "BREAKING: SCOTUS Dismisses Al-Marri Case"
ondelette | Friday March 6, 2009 10:14 am 1

Probably want to change that last sentence to read,

That’s as good a lay definition of vacating a decision as I’ve seen.

Given what the real lay definition of vacating is.

klynn | Friday March 6, 2009 10:15 am 2

Thanks for this post Christy.

Christy Hardin Smith | Friday March 6, 2009 10:16 am 3
In response to ondelette @ 1

True dat — updated the sentence above. *g*

Christy Hardin Smith | Friday March 6, 2009 10:18 am 4
In response to klynn @ 2

Sure thing — I figured everyone would want the info soon as I could get it.

Funnydiva2002 | Friday March 6, 2009 10:52 am 5

Thanks for this, Christy.
Gregg’s post at the MotherShip didn’t mention the vacated decision originally, so I was a bit discouraged.

I’m looking forward to more analysis from the FDL Legal Eagles. Does vacating the appeals court’s decision set an opposite precedent, or is the door still open for future presidents to re-argue their right to order indefinite detentions?
How does/would this decision and the instruction to the lower court to dismiss the case as moot affect other people detained in a manner similar to Al Marri’s?

Did the Obama DOJ argue merely for mooting Al Marri’s case, or did they ask the Supes to vacate the appeals court’s decision?

I got questions. But, I also got more hope than I’ve had in awhile.


tejanarusa | Friday March 6, 2009 10:57 am 6

Sounds good! So, al-Marri can’t be sent back to indefinite detention if he should be acquitted in the criminal proceeding, right?
Yeah, I’d better go read the order.

Thanks for keeping up on top of this, Christy.

klynn | Friday March 6, 2009 10:58 am 7
In response to Christy Hardin Smith @ 4

I like the timing on the ruling here, as well as the one out of the DC Circuit Court. Now we just need Walker to weigh in.

Loo Hoo. | Friday March 6, 2009 11:22 am 8

This is great news!

Mary | Friday March 6, 2009 11:35 am 9

I can’t get too excited over it – just more games playing like in Padilla.

Disappear someone into torture for years, then as their case hits the Sup Ct, transfer them out real fast and say “oopsies, guess you don’t have to rule bc we aren’t currently engaged in torture, let’s just do the look forward thing, ‘kaythnxbai”

Gov wouldn’t even agree that it could not change course anytime it wanted to during his civilian courts trial – or after an acquittal for that matter – and disappear him again.

And of course, that meme of why we have to continue to keep people in detentions – bc after the torture you can’t give them civilian trials – - – well, on the plus side we’ve shown that isn’t true. On the HUGELY MINUS side, we’ve shown that isn’t true.

Padilla, Fitzgerald’s Saleh case, the access to tortured witnesses in Moussaoui — the upshot of all of this is that we’ve demonstrated not only that forever detentions are still on the que (Kagan and Holder have both endorsed them) , but that our courts have drunk in torture like a syphillis served on the rocks, and it has been virulently damaging.

Given the opportunity to do something, the Sup Ct once again ducks and walks away.

Christy Hardin Smith | Friday March 6, 2009 11:37 am 10
In response to Mary @ 9

I was rather surprised at them vacating the lower ruling, actually — I thought it would simply be a dismissal order. So, in that sense, I suppose, it’s better than I’d thought it would be. Although I do wish they’d heard the argument and ripped the policy a new one…but…well, there you are.

Some days, it feels like we’re constantly trying to find a way to make lemonade out of some awfully sour lemons.

Mary | Friday March 6, 2009 11:43 am 11

They vacated because Gov tossed that in the pot as a sweetener, and Gov tossedit in because they didn’t need it.

The only reason al-Marri and Padilla both didn’t just disappear completely is bc there were prior proceedings (al-Marri’s credit card issues and Padilla’s material witness proceedings) that documented they were in the court’s jurisdiction. Did others disappear completely? Well, whatever happened to Aafia Siddiqui’s children – US citizens all?

Whle the lower court ruling was vacated, and so can’t be used again, the lawyers and Gov have both specifically retained their claim to the ability to disappear back to military detention anytime. Hamdi notwithstanding.

And the court won’t say boo to them.

Mary | Friday March 6, 2009 11:45 am 12

IOW – Gov could just as easily have agreed that the Dist Ct decision be overruled – they didn’t bc they didn’t want the precedent. Vacation does nada for torture victims of this government. And now it is “this” government – this Obama/Democratic controlled, government.

Funnydiva2002 | Friday March 6, 2009 11:57 am 13
In response to Mary @ 12

Crap. I was afraid of that, Mary.
Thanks for discussing what this news actually means for “the disappeared”.
Well, that sip of hope didn’t last long…


Mary | Friday March 6, 2009 12:16 pm 14

It’s better than nothing, but I guess that’s like telling Sophie she got to pick one of her kids to live.

I won’t be doing many happy dances.

Funnydiva2002 | Friday March 6, 2009 12:20 pm 15

I expected a lot more than “better than nothing” from the Obama Administration.
Color me disgusted.

Christy Hardin Smith | Friday March 6, 2009 01:23 pm 16

ACLU finally issued their statement, including a quote from Jonathon Hafetz who had been lead counsel on the appeal. Post is updated above…

FrankProbst | Friday March 6, 2009 01:47 pm 17

I’m with Mary. This pretty much means that, instead of the government being able to detain anyone they want to indefinitely, they can only detain them for the many years it will take them to appeal their case to the Supreme Court. I suppose it’s better than nothing, but not by much.

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