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Supreme Court vacates 4th Circuit decision in Al-Marri

Ali Saleh Kahlah Al-Marri

Ali Saleh Kahlah Al-Marri

The United States Supreme Court issued an Order on Friday determining that the the Al-Marri case is moot and vacating the decision of the 4th Circuit, which held that the president had authority to detain Al-Marri. The Order provides:

The application of the Acting Solicitor General respecting the custody and transfer of petitioner, seeking to release petitioner from military custody and transfer him to the custody of the Attorney General, presented to The Chief Justice and by him referred to the Court is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss the appeal as moot.

As SCOTUSblog explains:

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.

As noted in a previous post, this is the outcome that I was hoping for. It makes sense that the case is moot since Al-Marri is being charged. But it also make sense that the Fourth Circuit’s opinion has been vacated– it is good that the Supreme Court effectively set aside the language of the Fourth Circuit.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.