SCOTUSblog is reporting that the government has filed a reply brief in response to the one filed by Al-Marri's attorneys yesterday. The government makes many of the same arguments it made in its original motion to dismiss, but I will go over a few points I found interesting in this reply brief.
The government argues that Al-Marri is asking for what is the equivalent of a declaratory judgment, which is not relief that he previously asked for. It also says that there is no precedent suggesting that a habeas case is not mooted when the custodial authority voluntarily lets the prisoner go.
The reply brief also argues that there are no legitimate grounds upon which to say that the government's release of Al-Marri is an attempt to avoid review of the detention policy by the Court. The government says that Al-Marri is being transferred to the civilian court system after much consideration by civilian authorities and after the correct civilian processes have been performed. It also cites authority saying that President Obama's actions are entitled to a "presumption of regularity." This presumption is backed up by the fact that Jose Padilla was released to civilian authorities under similar circumstances and has not been redesignated and transferred by to military detention.
Something else I thought was interesting, and inconsistent, was that at the end of the brief the government couched Al-Marri's brief as asking for an advisory opinion. If you'll remember, a couple paragraphs ago I said that the government said that Al-Marri's brief was essentially asking for a declaratory judgment. The inconsistency is that advisory opinions and declaratory judgments are two different things. The Supreme Court can issue declaratory judgments, but it cannot issue advisory opinions. I feel that the government generalizing Al-Marri's brief as two distinct and contradictory things is strange.
In conclusion I want to draw your attention to two elements of the reply brief. First, is the repeated use of the word "hypothetical" which I still believe is an attempt by the government to draw a clear line between this case and Padilla. Second, the government again mentions that redesignating Al-Marri is not out of the question, but should not be considered and exception to the mootness doctrine in this case because such redesignation would be under markedly different circumstances. Again the government is expressing its willingness to potentially use this power to hold prisoners under conditions similar to Al-Marri's. I think this language is a clear message from the administration that it is not ready to give up this detention power because if it was willing to it would make a clear statement saying so, or it would allow the Court to make a decision in this case.