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Preventing a Judicial Ruling on the Power to Imprison without Charges

by Glenn Greenwald

After being held in captivity as an accused "enemy combatant" by the U.S. Government for more than five years without charges or a trial of any kind, Ali Al-Marri -- who was a legal resident in the U.S. and was on U.S. soil at the time of his detention -- was, two weeks ago, finally indicted and charged with various crimes in a federal court. The indictment came as the U.S. Supreme Court was set to rule whether the Constitution allows the President to imprison legal residents inside the U.S. as "enemy combatants" and keep them imprisoned indefinitely with no charges or trial (both sides of the appellate court decision agreed that the legal analysis is the same for the power to imprison U.S. citizens). But now there will be no such ruling, because the Obama administration (over the objections of Al-Marri's ACLU lawyer) successfully convinced the Court to dismiss the case on the ground that the indictment of Al-Marri renders the question "moot." This critical question will thus remain unresolved by the Supreme Court.

What just happened in the Al-Marri case is (with one important exception) a virtual repeat of what the U.S. Government (under the Bush administration) did in the Jose Padilla case. The Bush administration arrested Padilla, a U.S. citizen, on U.S. soil; accused him of being an "enemy combatant"; and then imprisoned him for the next three-and-a-half years without charges or a trial of any kind (even without contact with the outside world, including a lawyer). Just as Padilla's case was about to be heard by the U.S. Supreme Court, which was set to rule on whether the Constitution allows a President to order American citizens imprisoned in military brigs with no trial, the Bush DOJ indicted Padilla and then convinced the Supreme Court to refrain from ruling on the issue because Padilla's indictment rendered the question "moot." The critical question thus remained unresolved by the Supreme Court.

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