Constitutional Law

"Enemy Combatant" Charged in U.S. Court

The indictment of a domestically held 'enemy combatant' raises new questions regarding ongoing litigation before the Supreme Court.

A federal grand jury has handed up a criminal indictment in Peoria, Ill., against Ali Saleh Kahlah al-Marri, the only so-called 'enemy combatant' being held on U.S. soil. Without having ever stood trial, Marri has been detained by the U.S. government for almost six years – five of which have been spent in a U.S. Naval brig in Charleston, S.C. Marri's challenge to his indefinite detention is the focus of a Supreme Court case in which oral arguments are set for late April.

Whether the high court will proceed with the case is unclear. Marri's attorneys with the ACLU argue that 'it is vital that the Supreme Court go forward because it must be made clear once and for all that indefinite military detention of person arrested in the U.S. is illegal.'

However, observers note that the criminal indictment of Marri may render his case moot. The Washington Post reports that Justice Department officials are expected to make this argument, requesting that the Supreme Court dismiss the case. The case could be dismissed without oral argument with the votes of five justices.

'But the big question is whether that will happen before the Government is required to file its brief on the merits on March 23,' writes SCOTUSblog's Kevin Russell. 'There are only two conference days after [today] before the Government's brief on the merits is due – March 6, and March 20.'

While the Justice Department presumably wants to avoid filing a brief on the merits, the possibility remains that the justices will not take up the issue in the remaining two conferences before the government's brief is due.

If the Supreme Court does not take up the case as previously anticipated, the 4th U.S. Court of Appeals ruling that the government may detain domestic 'enemy combatants' indefinitely and without trial would stand.

Full post as published by ACS Blog on February 27, 2009 (boomark / email).