Among the executive orders President Obama issued upon assuming the presidency was one ordering the Justice Department to review the case of Ali Saleh al-Marri, a case that involves the enemy-combatant doctrine in terrorism cases that the U.S. government assumed after the 9/11 attacks. (For an extensive discussion of the importance of the al-Marri case, see “The al-Marri Case Affects Us All.”)
Here’s the issue in the al-Marri case. Prior to the 9/11 attacks, it was a well-established legal doctrine that terrorism is a crime. It’s listed in the federal criminal code as a criminal offense. Suspected terrorists have always been indicted and prosecuted in federal district court as criminals.
After the 9/11 attacks, however, and without even the semblance of a constitutional amendment, the Bush administration announced that the federal government would have the option of treating terrorism as either a crime or an act of war.
Many Americans cheered this assumption of power, some of them not realizing that it also applied to Americans. From 9/11 forward, the president wielded the power to take any American into custody as an enemy combatant terrorist and treat him accordingly — waterboarding, isolation, indefinite incarceration, etc. No jury trial. No Bill of Rights. No Constitution.
The president and the military applied the newly assumed enemy-combatant power to Jose Padilla, an American citizen, and to al-Marri, a citizen of Qatar, both of whom were arrested on American soil, which is considered part of the battlefield in the worldwide fight against terrorism.
The enemy-combatant power was upheld in the Padilla case by the Fourth Circuit Court of Appeals, arguably the most conservative circuit in the nation. When Padilla was appealing that decision to the Supreme Court, the government suddenly and unexpectedly exercised its option to treat Padilla as a criminal defendant instead of as an enemy combatant. That clever legal maneuvering deprived the Supreme Court of ruling on the matter, leaving the Fourth Circuit’s decision intact. That decision could, of course, be relied upon if the government were to begin rounding up Americans during some major crisis in the future.
Al-Marri was being prosecuted in federal district court for criminal offenses when the federal government exercised its post-9/11 option to convert him to enemy-combatant status. On the government’s motion, the federal judge dismissed the criminal indictment — “with prejudice” — and al-Marri was whisked away to the same military dungeon in South Carolina where Padilla had been incarcerated as an enemy combatant. That’s where al-Marri has been for the past six years.
When the al-Marri case reached the Fourth Circuit Court of Appeals, not surprisingly the court once again upheld the enemy-combatant power. Al-Marri appealed and the Supreme Court recently accepted the case. Al-Marri has filed his appellate brief and the government’s brief is now pending. That’s where the case now sits.
The course that Obama and the Justice Department select will undoubtedly have major ramifications for the American people. While those ramifications might be positive in the short run, they might well be negative and ominous in the long run.
One option would be to simply transfer al-Marri to the federal courts for prosecution, thereby treating his offenses as crimes rather than as acts of war. If they do that, then the Supreme Court will be once again be deprived of the opportunity to firmly and unequivocally strike down the enemy-combatant doctrine. The Fourth Circuit decision upholding the doctrine will remain intact, ready to be relied upon whenever some future president decides to begin rounding up Americans in the midst of a big crisis. In other words, transferring al-Marri to the federal courts will result in the same situation as when U.S. officials transferred Padilla to the federal courts.
Transferring al-Marri to the federal courts for prosecution, however, could be problematic for prosecutors. Why? Because prosecutors would be barred from charging al-Marri with the same charges that formed the subject of the initial indictment against him. That’s because a dismissal “with prejudice” is a final adjudication of those charges under the double-jeopardy provisions of the Constitution.
Another option would be to simply release al-Marri. That again would mean that the Supreme Court would not review the case, thereby leaving the Fourth Circuit decision intact.
Another option would be to ask the Fourth Circuit to vacate its decision and enter a new judgment in favor of al-Marri. That option is problematic, however, because while a court will vacate a particular decision based on an agreement of the parties, that doesn’t mean it will enter a new and different opinion in the case. That is, while the Fourth Circuit might well vacate its decision in response to a request from the government, the possibility that the court will enter a new opinion that effectively says, “We were wrong about the enemy combatant doctrine” is nil.
Thus, unless the government proceeds forward with the al-Marri case, the Supreme Court will be denied the opportunity to reverse the Fourth Circuit’s decision upholding the enemy-combatant doctrine. Yet, it is difficult to believe that given its purported intention to move America in a different direction with respect to civil liberties, the Obama administration will in good conscience be able to proceed forward and ask the Court to uphold al-Marri’s detention.
The final option would be to ask the Supreme Court to enter a decision and opinion overruling the Fourth Circuit decision and striking down the enemy-combatant power. That, however, that option is problematic because the courts do not enter advisory opinions. The court is more likely to say to the government: If you believe that, then you have your remedy — release him or transfer him to the federal courts.
Thus, while al-Marri might well come out the winner in all this, the likelihood is that the American people and their freedom will come out the loser because that ominous Fourth Circuit opinion upholding the enemy-combatant power will remain intact for use by some future president in the midst of some major crisis.