SCOTUS Vacates 4th Circuit Al-Marri Precedent

By Big Tent Democrat, Section Civil Liberties
Posted on Sat Mar 07, 2009 at 09:32:59 AM EST
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Yesterday, the Supreme Court, with the consent of the Obama Administration, vacated the Fourth Circuit Al Marri decision and dismissed the appeal as moot. I personally think this was the correct legal result but I do agree with Glenn Greenwald that the Obama Administration should do more on this issue:

[t]here were numerous steps the Obama administration could have and should have taken to prevent a repeat of the Padilla travesty, including: (a) explicitly renouncing the Bush administration's view that the President possesses this radical power (the super-transparent Obama DOJ refuses to comment on its view in that regard even though Candidate Obama explicitly rejected a similar theory -- see Questions 5 and 10); and (b) urging the Supreme Court to resolve the question notwithstanding Al-Marri's indictment, as Al-Marri's lawyers requested, on the ground that it meets one of the judicially established exceptions to the "mootness" doctrine.

More . . .

(Emphasis supplied.) I do not think (b) was the proper approach, especially since (a) is available (making the mootness exception unavailable as the Executive will have renounced the position argued in Al-Marri.) It is (a) that the Obama Administration should do. And it should be done by a public opinion from the Office of Legal Counsel. I ask yet again, where is Obama's Office of Legal Counsel on these and other issues related to claims of Executive power? Where is the transparency that we were promised from the Office of Legal Counsel?

Speaking for me only

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SCOTUS Vacates 4th Circuit Al-Marri Precedent | 16 comments (16 topical)

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You cannot run an "anti-Terrorism" (5.00 / 1) (#1)
by tokin librul on Sat Mar 07, 2009 at 10:24:50 AM EST

campaign and still have 'transparency.'

The lesson Obama learned--is learning-- from the Busheviks...

Dirty tricks require stealth...

May the OLC issue a legal opinion (none / 0) (#2)
by oculus on Sat Mar 07, 2009 at 10:59:31 AM EST

if OLC has not been requested to do so?

I'm thinking of my state's opinions of the attorney general. First step is someone, (including a member of the Legislature, another elected state official, local elected official, etc.) requests the opinion of the attorney general.

The President can request it (none / 0) (#3)
by Big Tent Democrat on Sat Mar 07, 2009 at 11:10:18 AM EST

Yes. But I gather he hasn't. (none / 0) (#4)
by oculus on Sat Mar 07, 2009 at 11:15:08 AM EST

Thus (none / 0) (#7)
by Big Tent Democrat on Sat Mar 07, 2009 at 11:26:05 AM EST

my complaint.


Or maybe he did and OLC issued (none / 0) (#8)
by oculus on Sat Mar 07, 2009 at 11:35:24 AM EST

opinion which is now a "state secret."


: Then (none / 0) (#10)
by Big Tent Democrat on Sat Mar 07, 2009 at 11:39:05 AM EST

my complaint is a lack of transparency.

Can you please explain? (none / 0) (#5)
by jbindc on Sat Mar 07, 2009 at 11:25:20 AM EST

This statement:

Yesterday, the Supreme Court, with the consent of the Obama Administration

Why is the Obama Administration "consenting" to anything? Is it just the way Greenwald wrote it, because it is my understanding that the Supreme Court makes rulings based on law and not if the Administration consents or denies.

They expressly consented to it (none / 0) (#6)
by Big Tent Democrat on Sat Mar 07, 2009 at 11:25:53 AM EST

Supreme Court had discretion to (none / 0) (#9)
by oculus on Sat Mar 07, 2009 at 11:36:40 AM EST

ignore Obama administration's consent to dismissal. But Supreme Court chose not to exercise it in this case.


: Thank you! (none / 0) (#11)
by jbindc on Sat Mar 07, 2009 at 11:44:40 AM EST

Yes (none / 0) (#12)
by Maryb2004 on Sat Mar 07, 2009 at 12:58:33 PM EST

with Lederman in the OLC I expected more.

I assume the OLC doesn't only issue written opinions but also verbally advises the President. For instance, whether or not explicitly renounce the Bush administration's view on certain matters.

Of couse, maybe Lederman is finding out that Presidents don't always listen to advice. iirc, Balkin warned that Obama would want to retain all the power that the Bush presidency took to itself, even if he didn't use it. Any president would be tempted to do that.

: And Dawn Johnsen (5.00 / 1) (#13)
by squeaky on Sat Mar 07, 2009 at 01:04:25 PM EST

Still waiting to be confirmed.

Just read Greenwald and (none / 0) (#14)
by oculus on Sat Mar 07, 2009 at 02:15:59 PM EST

am getting pissed off all over again. He takes a free shot at federal judiciary also.

Speedy Trial (none / 0) (#15)
by squeaky on Sat Mar 07, 2009 at 02:32:39 PM EST

Is in the constitution, no?

Thus, it's virtually certain that it will take a case of this sort several years to wind its way through the various stages of judicial review, all while the detainee sits in prison with no trial.

: Speedy trial is limited (none / 0) (#16)
by oculus on Sat Mar 07, 2009 at 03:08:44 PM EST

to criminal cases.