The Obama Administration told the Supreme Court Wednesday that it is not trying to keep on the books a sweeping lower court ruling upholding presidential detention power inside the U.S.  It is willing, it said in a reply brief renewing its plea for dismissal of Al-Marri v. Spagone (08-368), to have that decision wiped out.

“The government’s agreement here that vacatur of the decision below would be appropriate conclusively demonstrates that the government is not attempting to preserve its victory while evading review,” the brief said.

Moreover, it added, the decision to shift Ali Saleh Kahlah Al-Marri from military to civilian custody, for trial in civilian court on criminal charges, is the kind of action that is “entitled to a presumption of regularity,” especially since President Obama himself has told the military to release Al-Marri and to no longer treat him as an “enemy combatant.”

The Court plans to consider the government motion to dimiss the case at its private Conference on Friday, according to the Court’s electronic docket.  Chief Justice John G. Roberts, Jr., also has passed on to his colleagues for action a request by the government for permission to transfer Al-Marri out of the U.S. Navy brig in Charleston, S.C., where he has been held for more than five years without charges.

That could mean the Court could act as early as Friday afternoon or, if not then, next Monday. The Court agreed in December to rule on Al-Marri’s case, and the government’s brief — if the case is not dismissed — is due March 23.

The new brief sought to answer, point by point, the arguments made on Tuesday by Al-Marri’s lawyers on why the Court should go ahead and rule on his challenge to his detention while living lawfully in the U.S.

For example, to those lawyers’ suggestion that the government might use evidence developed at Al-Marri’s criminal trial as a basis for returning him to military custody in the future, the brief said a federal judge will be overseeing that trial, Al-Marri will have all of his constitutional rights, and he can raise immediately any protest if he believes his rights are being violated.

The government brief again argued that the Court should not reach out to decide basic issues of constitutional power, saying that Al-Marri’s plea for such a decision was an invitation for the Court to make “what amounts to an advisory opinion” to dispel future military detention of individuals captured and held inside the U.S. as terrorism suspects.

On no occasion, the brief contended, has the Court “reached out to decide a case that would not affect the petitioner or any other individual.  Indeed, the Court has repeatedly declined to do just that.”

The brief noted that Al-Marri is the last detainee in the war on terrorism who is being held captive inside the U.S.  Two others — Jose Padilla and Yaser Hamdi — have been released (Padilla, for criminal trial resulting in his conviction, and Hamdi, to return to his country of birth, Saudi Arabia).  Once Al-Marri leaves the Navy brig, there would be no individual to whom a Supreme Court ruling on domestic detention authority would apply, the brief said.

Al-Marri’s lawyers have indicated that he would only go along with dismissal if the government gave firm assurances that Al-Marri would never be returned to military custody, and that the Administration is renouncing the detention authority that led to his capture.  The government’s reply brief, like its initial motion to dismiss, did not give such assurances, even though the latest filing appeared to lean a bit more in that direction.

Posted in Al-Marri v. Spagone, Uncategorized