JURIST Guest Columnist Bruce Miller of Western New England College School of Law says that despite the Obama administration’s intent to criminally charge Ali Al-Marri in a US court, his challenge to his detention as an “enemy combatant” continues to present a live case which the Supreme Court is obliged to adjudicate…

On Friday, February 27th, the Obama administration announced its intention to charge Ali Al-Marri, a legal resident of the United States, with the crime of material support for terrorism. This decision will end, temporarily at least, Al-Marri’s more than half-decade in military detention as an enemy combatant in the Navy Brig at Charleston, South Carolina. Simultaneously, and predictably, the administration also moved to dismiss as moot Al-Marri’s Supreme Court appeal of a Federal Court of Appeals decision upholding that detention, arguing that there is no longer a dispute between Al-Marri and the government. The Court should quickly deny that motion and retain the appeal on its docket.

Although our government’s military detention of Al-Marri is suspended for the duration of his criminal prosecution, his challenge to that detention nonetheless continues to present a live case, within the meaning of Article III of the Constitution, a case which the Court is obliged to adjudicate. The mootness doctrine, famously included among the “passive virtues” described by Alexander Bickel nearly fifty years ago, is a judicially crafted instrument of prudence, which permits the Supreme Court to dismiss a case if the dispute between the parties that triggered it ceases to exist. Mootness, along with a small passel of kindred tools of judicial avoidance – the ripeness, generalized grievance, third party standing and prudential political question doctrines – allow the Supreme Court great leeway to control the timing and context for its exercise of the power and duty of Constitutional judicial review. Professor Bickel defended these doctrines as enabling the Court to defer resolution, especially of “momentous” Constitutional issues, to a time when the political controversy surrounding them has abated, making a principled rather than expedient decision more likely. Consistent with this prudential, hence inherently discretionary, purpose, the mootness doctrine is limited by several important judge-made exceptions, many of which apply to Al-Marri’s case.

The first of these exceptions excludes from dismissal as moot cases in which a plaintiff seeks relief from injuries which are “capable of repetition, yet evading review.” Though narrow in conception, because it applies only when the plaintiff him/herself faces a credible threat of being injured a second time, this exception perfectly captures Al-Marri’s situation. He has already once been charged with federal crimes since his detention commenced in late 2001. These charges of credit card fraud and identity theft were dismissed with prejudice by the Justice Department in 2003 when Al-Marri’s motion to suppress evidence against him secured from other detainees threatened to expose the Bush administration’s interrogation methods to judicial scrutiny. It was then that the Bush administration conveniently decided to designate Al-Marri an enemy combatant and transfer him to military custody. Now, with Supreme Court review of that designation imminent, the Obama administration has determined to move Al-Marri back into the civilian jurisdiction of the Justice Department, again seeking to evade judicial review. Is Al-Marri’s designation as an enemy combatant capable of repetition? Of course it is, unless the Obama administration is prepared to acknowledge that it has no statutory or Constitutional power to reclassify him as enemy combatant and again subject him to military detention if the new criminal case against him does not turn out to the administration’s liking.

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Tags: Ali Al-Marri, Obama Administration, Supreme Court

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