The government filed its Motion to Dismiss the Al-Marri case yesterday. The 15 page argument asks the Supreme Court to dismiss the case on mootness grounds, or in the alternative to vacate the 4th Circuit judgment and remand it back to that court to dismiss. The argument is that the Al-Marri's indictment gives him the very relief he sought in his habeas petition, which was to either be charged with a crime and go to trial or to be released from custody.
The motion goes on to preempt any arguments that Al-Marri might make against dismissing for mootness. One exception to the mootness doctrine is voluntary cessation of the conduct complained of. If the party engaging in the challenged conduct voluntarily ceases the conduct to avoid litigation the mootness doctrine will not apply if it can be shown that the plaintiff will be subject to the challenged conduct in the future. The government argues that in this case there is no non-speculative reason to believe that the government will put Al-Marri back into military custody. Interestingly, the motion does admit that Al-Marri could be re-designated an "enemy combatant" in the future, but that such a re-designation would be under such different circumstances that it would be improper for the Court to consider a re-designation at this point.
The other exception to mootness argued against in this motion is that of the challenged action being likely to be repeated in the future, but yet evading review. If the aggrieved party can show that the challenged action is likely to be repeated in the future but that such action would be unlikely to be able to be litigated, and that the aggrieved party can reasonably suspect being subjected to the action again, mootness can be overcome. The government says that Al-Marri cannot meet either prong because repetition of the action is merely speculative at this point in time, and even if he were subjected to military detention again there is no reason to suspect that such action would not be able to be litigated.
Third, the government throws in a pretty standard argument that the Court should not decide a case on constitutional grounds when there is another way to decide the case. The government argues that deciding the case on the complex constitutional grounds raised is imprudent becaused the order to remove him from military custody gives him the relief he seeks.
Something that jumped out at me was the repreated use of the word "hypothetical." This language points back to the Padilla case where the Court chose not to hear the case because the chances of Padilla being returned to military custody were only "hypothetical", and therefore there was not enough to keep the controversy in that case alive. Since the Padilla case is so analogous to this one I think the government is drawing a clear line from that case to this one so as to make the Court's decision to moot the case an easy one.
I think this was the expected reaction from the government, but I still would have liked to see them let the Court decide it. Of course, the Court hasn't made its decision to moot the case yet, but they most likely will. They most likely would have done it even without this motion to dismiss, but I think that if the Obama administration was serious about determining the constitutionality of the actions complained of in Al-Marri then they would have wanted to see what the Court would say. Now we are still left with the same doubt we had before, and the government still has this tool at its disposal.