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SCOTUS To Consider Al-Marri Case: Briefs To Be Filed After Obama Takes Office

SCOTUS granted certiorari today to the al-Marri case. Meaning the justices will allow arguments and make a ruling on the case, pitting President Bush’s claim of unlimited detention war powers against individual liberties of a legal resident of the United States as enshrined in the constitution and the Bill of Rights.

SCOTUS set argument on the case tentatively on the docket for mid- to late-ish March.

This means the government’s brief in the case will not be filed until mid-February, well after the Obama Administration has taken office. Which puts a few questions front and center: Will the Obama Administration change the stance of the government’s position in their filing? Who will be nominated to head OLC? Will it be someone who can pass Senate scrutiny quickly enough — or will it be remaindered DOJ personnel who will file the brief and, if so, who will be doing the supervision of said filing?

What does this mean in terms of government position in the matter? As SCOTUSblog says:

…his administration will have the option of changing the government’s present position in defense of the detention authority….The Justice Department had urged the Supreme Court not to hear al-Marri’s challenge at this point, but instead to allow the District Court proceeding to continue. The Court, however, granted review of the issue that al-Marri had raised — a direct test of presidential authority.

The question at issue is: “Does the Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorize — and if so does the Constitution allow — the seizure and indefinite military detention of a person lawfully residing in the United States, without criminal charge or trial, based on government assertions that the detainee conspired with al Qaeda to engage in terrorist activities?”

As longtime readers no doubt recall, this case was a hugely controversial one in the Fourth Circuit. Scarecrow’s analysis is a must read for background, as are Marty’s two pieces from the time here and here.

For those new to the case, ACLU has background on the case, a press release about today’s grant of cert, and a copy of their filing in the case as well. And the Brennan Center has additional information regarding their work on the case, including a copy of a motion filed with regard to alleged brutal treatment of al-Marri whilein US custody.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com