UPDATED TO 1:40 p.m.

The Supreme Court on Friday wiped out a lower court ruling that gave the President the authority to detain indefinitely as terrorism suspects individuals who are living legally in the United States. The order also approved transfer of Ali Saleh Kahlah Al-Marri from military custody to civilian custody for a trial on criminal charges in a regular federal court, presumably in Illinois. The order is available here.

The Court’s action ended the Qatari national’s case – Al-Marri v. Spagone (08-368) — that the Court had agreed to hear.  Thus, a hearing set for April 27 will not be held.  The petition challenged the President’s authority to order domestic detentions, arguing that neither the 9/11 Resolution enacted after the 2001 terrorist attacks or the Constitution authorized such actions.

The Fourth Circuit Court, in a splintered decision, upheld that authority under the 2001 Resolution, but did not rule on the government’s alternative claim that the President’s constitutional power as Commander-in-Chief supported the action.  While the Supreme Court’s order Friday does not indicate how the Justices would have ruled had they gone ahead with their review, their order “vacated” the Circuit Court ruling, meaning that it no longer is a binding precedent on the issues it decided.

The Obama Administration, which is making a wide-ranging review of all aspects of detention policy, had urged the Court to end the case, on the theory that there was no longer a “live” controversy in view of Al-Marri’s indictment on civilian charges, or to vacate the lower court ruling as “moot.”  Al-Marri’s lawyers wanted the Court to go ahead and resolve the detention power issue, but they preferred, as an alternative, to have the lower court ruling vacated rather than simply having his appeal dismissed.

Jonathan Hafetz of the American Civil Liberties Union, Al-Marri’s lead lawyer, called the order vacating the lower court decision an “important step,” and added: “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.”

The Justice Department had no immediate comment on the Justices’ order.  That order spares the new Administration from having to take a formal position on the detention issue that was at stake.

So far, government officials have not said whether they embrace the concept that the Fourth Circuit upheld, but the Justice Department did tell the Supreme Court that the government’s willingness to have the lower court ruling vacated showed “that the government is not attempting to preserve its victory while evading review.”

The Department also had argued that keeping the case alive, after Al-Marri’s indictment and shift from military to civilian custody, would lead only to an advisory opinion with no real-world impact on any individual.  It also had said that the issues involved were in a “sensitive area where national security policy and the Constitution intersect,” and thus that the Court should not reach out to decide “complex constitutional questions in a hypothetical posture.”

The Supreme Court, in the 2004 decision in Hamdi v. Rumsfeld, upheld the government’s power to temporarily detain terrorism suspects, but that case only involved a prisoner taken captive on an active battlefield overseas, in Afghanistan.  The Court also said in that decision that prolonged detention might at same point become a constitutional problem.

The Court, however, has never ruled on government authority to detain, without charges, an individual who was lawfully in the U.S., either as a citizen living here or as an alien with resident status.  The Al-Marri case was the first one the Court had agreed to hear on that question; an earlier case raising the same issue, Padilla v. Rumsfeld, ended when the government — as with Ali Al-Marri — obtained criminal charges and moved Jose Padilla out of military custody.  After that, the Court denied review of Padilla’s detention case.

With Friday’s order on Al-Marri, he will soon be taken into federal court for an initial appearance, to have the charges read to him.  A grand jury in Illinois on Feb. 26 charged him with two counts of providing “material support and resources” to the Al Qaeda terrorist network.  The maximum penalty on each charge is 15 years in prison.  One day after the charges were filed, they were made public and President Obama ordered Al-Marri’s release by the military.  He has been held at the U.S. Navy brig in Charleston, S.C., for more than five years without any charges, military or civilian.  He was arrested at his home in Peoria, Ill., where he was attending Bradley University.  The government later shifted him into military custody, saying he had come to the U.S. to take part in terrorism activities with a “sleeper cell” of Al Qaeda operatives.

Posted in Al-Marri v. Spagone, Uncategorized