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The Al Marri Grant:
I was glad to see the Supreme Court grant cert in Al Marri: This is an important issue and clarity is needed, no matter what way the Court eventually rules.

  One catch is that I assume the Court would likely dismiss the case without a decision if the incoming Obama Adminstration decides to detain Al Marri on some ground other than that he is an "enemy combatant." And it's hard to see why the new Administration wouldn't do that. My recollection was that Al Marri was about to go to trial on credit card fraud charges in federal court before he was transfered to military custody. Unless there are some procedural issues that I'm not thinking of, he can go back to being so charged.

  UPDATE: Commenters point out that the charges against Al Marri were dismissed with prejudice, so the old charges could not be reinstanted. Instead, some new charges would need to be filed. The rest of this post assumes that the government has evidence to support charges for some other crime.]

  That would seem to be the obvious preference for the new Administration. They should charge Al Marri in federal court and try to get a conviction with a long sentence to avoid these questions for as long as possible. Such a choice would reinforce to the Justices that there's a new Executive Sheriff in town; it would look good to the world; it would make civil libertarians happy; it would keep Al Marri off the streets; and it would avoid litigation a battleground that the new administration didn't choose and presumably would rather have avoided in the first place. Perhaps these issues will come up again down the road, but maybe they won't: No need to fight a battle like that now.

  Incidentally, one interesting question is why the Court granted now if they knew (as they must have) that the new Administration might take a different course. One reason is that the grant forces the new Administration to act soon. Another possibility — and this is one I will have to think about — is that a change in the Administration's view could let the Court GVR, "grant vacate and remand," taking the lower court decision off the books for now in light of the SG's change of position.
Bruce:
Orin, this isn't a very strong defense of the lawless and radical Bush policies of the last eight years. I expect more from a leading apologist.
12.5.2008 5:31pm
krs:
Bruce, I think you're violating the terms of service. You may have to go to jail.
12.5.2008 5:33pm
BGates:
The flaw in that logic is that Obama doesn't seem to be aware that credit card fraud is illegal.
12.5.2008 5:35pm
einhverfr (mail) (www):
Orin Kerr wrote:

That would seem to be the obvious preference for the new Administration. They should charge Al Marri in federal court and try to get a conviction with a long sentence to avoid these questions for as long as possible. Such a choice would reinforce to the Justices that there's a new Executive Sheriff in town; it would look good to the world; it would make civil libertarians happy; it would keep Al Marri off the streets; and it would avoid litigation a battleground that the new administration didn't choose and presumably would rather have avoided in the first place.


I disagree regarding keeping civil libertarians happy. Such a move would say that times have not changed since the same thing happened with Jose Padilla. I hope that they wait until after the Supreme Court hears the case and rules on it for the same reason that I hope Judge Wu denies the rule 29 motion in US v. Lori Drew, but that the convictions are overturned on appeal. Sometimes the precedent is worth the wait and the damage to the system that will occur if these precedents are allowed to stand.
12.5.2008 5:38pm
einhverfr (mail) (www):
Just as a note, though, you have outlined why the Obama administration will probably do to Al Marri exactly what the Bush administration did to Padilla.
12.5.2008 5:40pm
OrinKerr:
einhverfr,

Timing is everything.
12.5.2008 5:41pm
Howard Gilbert (mail):
When al Marri was transferred to military custody the Federal judge in charge of his criminal case dismissed the charges with prejudice. So they cannot be refiled unless the dismissal is changed. Al Marri probably would have been transferred back and tried years ago if that option was available, just as Padilla probably spent 15 months extra in military detention waiting until the government won its case completely in the Fourth Circuit before they unsealed the indictment and transferred his case to Miami.
12.5.2008 5:49pm
einhverfr (mail) (www):
Howard Gilbert:

Interesting. I did some digging and you seem to be correct.

From the CNN article


At the government's request, the existing criminal charges against al-Marri, who was awaiting trial in Illinois, were dismissed with prejudice, meaning they cannot be filed again.


Seems like there is no perfectly easy option for Obama....
12.5.2008 6:15pm
einhverfr (mail) (www):
The CNN article is here.
12.5.2008 6:16pm
Kazinski:
If, as alleged, al-Marri came to the United States with the intent of waging war against it in service of a hostile power, then why would Obama prefer that al-Marri face charges for credit card fraud?

If the Adminstration does have clear and convincing evidence that Al-Marri was part of a conspiricy to violate the laws of war shouldn't he be tried, under the laws of war, per Supreme Court precedent, rather that just finding some other convenience charge that skirts the issue?
12.5.2008 6:34pm
Kazinski:
It was a travesty of Justice for the US Attorney in the Lori Drew case to take a civil violation, and try to make a criminal case out of it. It is just as bad trying to convert a violation of the Laws of War, into a criminal code violation.
12.5.2008 6:37pm
OrinKerr:
Kazinski asks:
If the Adminstration does have clear and convincing evidence that Al-Marri was part of a conspiricy to violate the laws of war shouldn't he be tried, under the laws of war, per Supreme Court precedent, rather that just finding some other convenience charge that skirts the issue?
Should you ask that to the Bush Administration? I believe the Bush Administration's view is that it doesn't have to try Al Marri under the laws of war. Indeed, I would think (off the top of my head) that a decision to try Al Marri would also lead to a dismissal of the case.
12.5.2008 6:50pm
ShelbyC:

Unless there are some procedural issues that I'm not thinking of, he can go back to being so charged.


Any issue with speedy trial?
12.5.2008 6:53pm
Thomas_Holsinger:
I tend to agree with Professor Kerr that Grant, Vacate &Remand is a real possibility here. IMO the Court may be looking for an opportunity to give the incoming Obama administration the time it needs to formulate a policy based on past Court rulings.
12.5.2008 6:55pm
Anderson (mail):
Just possibly, Obama might *appreciate* some legal precedents on these issues, so he doesn't have to *guess* what the courts will tell him he has to do?

I dunno, but I would hope that the Bushies' "god forbid we get a legal interpretation from the high Court" approach to enforcing the laws, will soon be a thing of the past.
12.5.2008 6:57pm
OrinKerr:
Anderson,

I believe David Addington's strategy was "we're going to push and push until someone makes us stop," not "god forbid we get a legal interpretation from the high Court."
12.5.2008 7:00pm
Steve:
Just possibly, Obama might *appreciate* some legal precedents on these issues, so he doesn't have to *guess* what the courts will tell him he has to do?

I tend to disagree. If Obama doesn't think he needs to detain people like al-Marri indefinitely, then he's simply not going to do it. No point in going through a court battle just so the Supremes can decide that you're not allowed to do something you didn't want to do anyway.

I also agree with Prof. Kerr that the Administration's attitude was not "we're in a state of legal uncertainty, and we like it that way," but that "unless and until the Supreme Court declares what the law is, we get to declare what the law is." Although to some extent, it's a distinction without a difference.
12.5.2008 7:08pm
NatSecLawGuy:
Professor Kerr,
How do you feel about the growing usage of the Orin postulate amongst the larger Volokh community? Could we see a debut in other fora?
12.5.2008 7:23pm
MarkField (mail):

I believe David Addington's strategy was "we're going to push and push until someone makes us stop," not "god forbid we get a legal interpretation from the high Court."


Like most bullies, Addington (or someone in the Administration) was quick to back down when the challenge actually came.
12.5.2008 7:28pm
Grant Gould (mail):
They should charge Al Marri in federal court and try to get a conviction with a long sentence...it would keep Al Marri off the streets

I can't help but notice that neither the poster nor any commenters seem to want to consider that Al Marri might not actually be guilty...
12.5.2008 7:51pm
einhverfr (mail) (www):
Shelby C:



Unless there are some procedural issues that I'm not thinking of, he can go back to being so charged.


Any issue with speedy trial?


It is more than that, it seems. It looks like the Bush Administration asked for (and got) the previous charged dismissed with prejudice. This basically means no, he can't go back to the old charges because that is what "with prejudice" means.
12.5.2008 8:03pm
ShelbyC:
einhverfr: Thanks. I acutally posted before I'd read that part, sorry :-).
12.5.2008 10:52pm
jukeboxgrad (mail):
bgates:

The flaw in that logic is that Obama doesn't seem to be aware that credit card fraud is illegal.


The flaw in your attempt at wit is that Obama didn't commit credit card fraud. However, fraud was indeed committed by the many righty bloggers who donated to Obama using phony names. This was fraud even though Obama eventually got the correct name from the bank. (And he did indeed eventually get the correct name from the bank, at the time that he collected the money from the bank, because your bank knows the real name associated with your card number, even if you attempted to use some other name when you posted the transaction on Obama's web site.) But every bit helps, so thanks for the money.
12.6.2008 12:17am
Brian K (mail):
However, fraud was indeed committed by the many righty bloggers who donated to Obama using phony names.

even i have a hard time believing someone would be this stupid.
12.6.2008 12:34am
jukeboxgrad (mail):
brian k:

even i have a hard time believing someone would be this stupid


Maybe you'll also have a hard time believing what the law says:

FECA prohibits making a contribution in the name of another


In particular, see U.S.C. 441f:

No person shall … Make a contribution in the name of another


So the bloggers who thought they were being cute were breaking federal law, and encouraging others to do the same.

I think violation of 441f is a felony, and subject to 2 years of imprisonment.
12.6.2008 1:14am
jukeboxgrad (mail):
On second thought, I think you're trying to say "i have a hard time believing someone" would be stupid enough to make those donations using phony names. In that case, I apologize for misunderstanding you.
12.6.2008 1:20am
Brian K (mail):
haha...the second time is the charm
12.6.2008 2:17am
jdporter (mail):
LiLo is lucky, then, that Facebook doesn't require a credit card number to create an account. :-)
12.6.2008 9:00am
Bart (mail):
I am trying to understand the logic behind the al Marri argument,

If al Marri was captured overseas, he could be held as a prisoner of war (generic not GC) for the duration of the conflict and could be interrogated for intelligence.

However, because al Marri successfully invaded and operated in the United States, he cannot be held as a POW and instead transforms into a criminal suspect with a right to silence during interrogation and must either be convicted or released back onto our streets.

This is more than a little insane. Talk about your incentives to encourage the enemy to invade and operate inside our nation. Then again, Justice Kennedy has not exactly been rational in having the judiciary assume the war powers of the President and Congress.
12.6.2008 9:49am
Litigator-London:
Bart - there are a number of issues:-

(i) whether there can be a state of war with a non-sovereign entity;

(ii) whether a person detained off the field of battle and not forming part of the armed forces of an opposing state may be detained as a prisoner of war;

Since the so-called "war on terror" is a juridical nonsense one must look to the criminal law for remedies if there are any which can be proven to the requisite standard.
12.7.2008 3:02am

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