Attorneys for Ali Saleh Kahlah Al-Marri filed a brief with the Supreme Court yesterday asking it to deny the government's motion to dismiss the case. Al-Marri's brief argues that the case is not moot, but asks that if the Court does decide it is moot it should vacate the 4th Circuit decision in the case.
The brief's main argument is that the case is not moot because the government has not made any clear assurances that it will not redesignate Al-Marri an "enemy combatant" in the future and return him to military custody. It argues that mootness does not exist when a defendant takes voluntary action to end the practice complained of, and it is not "absolutely clear" that the action will be repeated in the future. The brief points out that the government's own motion to dismiss says that it can contemplate future circumstances that would lead it to redesignate Al-Marri and return him to military custody. Al-Marri's attorneys argue that such an admission shows that it is not "absolutely clear" that the government will not engage in the controversial conduct in the future.
Another argument it makes is that prudence concerns require the Court to hear the case. It argues that the very idea of habeas corpus is called into question if the government can continue to avoid review of its policies by transferring these prisoners. I think the brief draws a nice distinction between this case and the Padilla case. If you'll remember, Padilla was an earlier case which the Court denied cert to based on mootness grounds. Al-Marri's attorneys argue that their case is different because the Court has already granted cert, and it is scheduled for argument in two months. It argues that a great deal of time has been spent on preparing this case for Supreme Court review, and a great deal of time has already been spent in the lower courts to get the case to this point, thus the Court should not get rid of the case so close to its conclusion.
In the alternative, the brief asks for relief in the form of vacating the 4th Circuit's judgment in the case. I think this is what the Court will end up doing in the case 1) because it needs to get rid of judicial precedent that upholds the constitutionally questionable practice; and 2) because both sides can agree that it would be an acceptable resolution (although it isn't the remedy either side prefers). I think that vacating the 4th Circuit judgment is a hollow victory for Al-Marri. On the plus side it would be nice not to have any judicial precedent that upholds the authority of the U.S. government to detain those legally in the U.S. in military custody. However, vacating the 4th Circuit decision in no way takes away the ability of the government to engage in this practice. The government already claims the power under the AUMF to be able to use military detention to detain those it suspects of terrorism even if those people are legally within the U.S. when they are captured. The only thing that can stop the government from exercising this power again is a Supreme Court decision.
I still think the government will win this argument. It seems to me that there are sufficient similarities between Al-Marri and Padilla to allow the Court to moot this case. I also think that because Al-Marri was the last detainee held under this authority that the Court will see no real urgency to make a decision. However, I believe that the Al-Marri case should be heard by the Court if at all possible because the constitutionality of the government's power in these instances needs to be assessed.