http://www.salon.com/opinion/greenwald/2009/03/07/al_marri/"After being held in captivity as an accused "enemy combatant" by the U.S. Government for more than five years without charges or a trial of any kind, Ali Al-Marri -- who was a legal resident in the U.S. and was on U.S. soil at the time of his detention -- was, two weeks ago, finally indicted and charged with various crimes in a federal court. The indictment came as the U.S. Supreme Court was set to rule whether the Constitution allows the President to imprison legal residents inside the U.S. as "enemy combatants" and keep them imprisoned indefinitely with no charges or trial (both sides of the appellate court decision agreed that the legal analysis is the same for the power to imprison U.S. citizens). But now there will be no such ruling, because the Obama administration (over the objections of Al-Marri's ACLU lawyer) successfully convinced the Court to dismiss the case on the ground that the indictment of Al-Marri renders the question "moot." This critical question will thus remain unresolved by the Supreme Court.
What just happened in the Al-Marri case is (with one important exception) a virtual repeat of what the U.S. Government (under the Bush administration) did in the Jose Padilla case. The Bush administration arrested Padilla, a U.S. citizen, on U.S. soil; accused him of being an "enemy combatant"; and then imprisoned him for the next three-and-a-half years without charges or a trial of any kind (even without contact with the outside world, including a lawyer). Just as Padilla's case was about to be heard by the U.S. Supreme Court, which was set to rule on whether the Constitution allows a President to order American citizens imprisoned in military brigs with no trial, the Bush DOJ indicted Padilla and then convinced the Supreme Court to refrain from ruling on the issue because Padilla's indictment rendered the question "moot." The critical question thus remained unresolved by the Supreme Court...
...But there were numerous steps the Obama administration could have and should have taken to prevent a repeat of the Padilla travesty, including: (a) explicitly renouncing the Bush administration's view that the President possesses this radical power (the super-transparent Obama DOJ refuses to comment on its view in that regard even though Candidate Obama explicitly rejected a similar theory -- see Questions 5 and 10); and (b) urging the Supreme Court to resolve the question notwithstanding Al-Marri's indictment, as Al-Marri's lawyers requested, on the ground that it meets one of the judicially established exceptions to the "mootness" doctrine. The Obama administration did neither: instead, it explicitly refused to renounce this power while simultaneously ensuring that the Supreme Court would -- once again -- refrain from ruling on its constitutionality:
....Even if the Supreme Court dismissed the case as moot, an explicit statement from the Obama administration -- and especially a formal ruling from the OLC -- rejecting the power asserted in this case would have been a substantial improvement over what they actually did here."
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