"Obama Prepares to Authorize Indefinite Detention of US Citizens for First Time Since McCarthy Era"

[BzaDem]

154. It looks like you are correct.

I was mistaken (and have edited my post to correct that).

The procedural posture in that case was very unusual. When the Bush administration decided that he could have a criminal trial, and Luttig went apeshit on the government, Luttig apparently denied the government's routine motion to vacate the decision in its entirety (to preserve it for Supreme Court review). I had thought that when the Supreme Court denied review in 4/06, it mooted the case and vacated the opinion. However, it appears that on closer reading, the Supreme Court merely found it likely that the issue was moot (rather than made a formal determination that the issue was moot), which left the decision in place.

Interestingly, in the case of Al-Marri (in 2008), there was another pro-government, pro-indefinite-detention decision for someone captured inside the United States. Once again, the defendant appealed to the Supreme Court (and the Supreme Court accepted the case this time). Once again, the government attempted to moot the case by moving Al-Marri to the criminal justice system before the Supreme Court could rule. This time though, the Supreme Court made a formal determination that the case was moot and the 4th circuit opinion was vacated.

If the issue ever reaches the Supreme Court, it is almost certain that they will reverse (and find no right to indefinitely detain US citizens). Scalia had an opinion in Hamdi that stated that even a US Citizen captured on a foreign battlefield during a war is entitled to fill criminal due process rights. The 4 liberals would almost certainly join Scalia (and probably Kennedy) in preventing the executive from indefinitely detaining US Citizens captured off a battlefield.