One question raised by Lyle’s post below – noting news reports that the Administration may shortly charge detainee Ali Saleh Kahlah al-Marri in a civilian court – is whether this move will in fact allow the Administration to avoid taking a position on the merits of al-Marri’s constitutional and other claims in the Supreme Court.  [Disclosure: we filed an amicus brief supporting al-Marri].

Presumably, if charges are filed, the Government will move to dismiss the case as moot.  But it also seems apparent (from his lawyers’ press release) that al-Marri will oppose the dismissal, presumably on the ground that there remains a risk that he will be moved back into military custody (as, after all, happened the last time the Government charged him with a crime).  The dissenting votes from the denial of Padilla’s cert. petition may indicate that at least some Justices will think such arguments are serious.

Of course, if five Justices agree with the Government’s motion, then the case will be dismissed.  But the big question is whether that will happen before the Government is required to file its brief on the merits on March 23.  There are only two conference days after tomorrow before the Government’s brief on the merits is due – March 6, and March 20.  Given the need to give al-Marri time to respond, it seems most likely that the Court would consider any motion to dismiss at the latter conference, giving the Government a few days to file its brief if the motion were denied.

But there is a real possibility that the Court would not rule on the motion at the conference.  Instead, the Court could hold the motion over to decide along with the merits (if necessary) after oral argument.  That would force the Government to file a brief on the merits, something it presumably very much wants to avoid.

In many cases in which a debatable claim of mootness arises during the pendency of the case in the Court, the Court has taken the motion to dismiss under advisement and gone ahead and heard oral argument.  The Court did so, for example, in Office of Sen. Dayton v. Hanson, in 2007, when the Senator retired during the pendency of the case against his office.  This of course makes a great deal of sense in many cases, given that if the claim of mootness is denied, the final resolution of the case is not thereby delayed by the ultimately fruitless motion to dismiss.  And if the mootness question is close, the Court may find oral argument on the issue helpful.

Both of these considerations might militate in favor of going forward with the argument – any further delay in the briefing on the merits would make it quite difficult (probably impossible) to decide the case this term, and al-Marri has already been in custody a very long time.  Moreover, although at least five Justices thought that the removal of Padilla to civilian custody was a reason to deny certiorari, that does not necessarily mean that they agreed with the Government that the case was moot (Justice Kennedy’s concurring opinion took pains to take no position on the question). Nor does it necessarily show that five Justices would think that if the Court had already granted certiorari, the intervening event would have been grounds to dismiss the petition as improvidently granted.  (The Court’s decision yesterday in lineLink, for example, declined to dismiss that case, even though the respondent all but confessed error, given the importance of the issue and the resources already devoted by the Court and the parties to resolving it).

All of which is simply to say that there could well be five Justices who think that the motion to dismiss warrants oral argument.

On the other hand, the Justices might be sympathetic to the Administration’s desire to avoid taking a position on the merits, and skeptical of the al-Marri’s grounds for opposing dismissal.  Perhaps even some of the Padilla dissenters might think that the realistic likelihood of al-Marri being put back in military custody is smaller than was the risk posed to Padilla, given the change in Administration (although they would be unlikely to say so in an opinion), and given that Padilla was not, in fact, ever returned to military custody.

How this all will play out, I can’t say. But it will be interesting to watch.

Posted in Al-Marri v. Spagone, Everything Else