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View Diary: Obama moves to avoid Supreme Court case in order to preserve indefinite detention (36 comments)

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  •  um, no that's not quite it (0+ / 0-)

    The Supreme Court can only decide an actual case or controversy:

    http://en.wikipedia.org/...

    And the Supreme Court does not appoint amici (friends of the court). You must petition to be allowed to brief an issue as an amicus, though.

    Finally, there is zero chance the Supreme Court would decide that Bush was right in this case, because this same Supreme Court has already decided that the denial of habeas under the Miltiary Commission Act to prisoners arrested abroad is unconstitutional (that was the Boumedienne case)

    http://en.wikipedia.org/...

    There is no way I can see that the Court would say someone arrested right here in the U.S. would have fewer rights than people arrested abroad.

    •  Actually no (1+ / 0-)
      Recommended by:
      elmo

      I do appellate and Supreme Court litigation, and when the United States chooses not to defend a statutory or constitutional ruling made by a lower Court, someone is appointed to argue in support of the decision below.

    •  Here's an article about the practice (1+ / 0-)
      Recommended by:
      elmo

      With a bit of the most relevant text

      http://www.law.com/...

      These once-in-a-lifetime opportunities to argue before the Court arise when, as in Greenlaw, the respondent abandons the lower court decision that the petitioner is challenging. That scrambles the usual adversary nature of Supreme Court cases, because it means, in essence, that both sides think the lower court decision was wrong or should be vacated.

      In that circumstance, which has not arisen for five years before this term, the Court appoints a lawyer -- almost always a former clerk -- to make the orphaned argument.

      Why does the Court do this? As Justice Ruth Bader Ginsburg expressed it in a footnote in the 2003 case Clay v. United States, appointing a lawyer to defend the lower court judgment when no one else will "permits us to decide the case satisfied that the relevant issues have been fully aired."

      In a sense, it is the truest form of amicus curiae or "friend-of-the-court" representation, because the appointed advocate has no client -- and does not get paid. But the intangible rewards for the lawyer are great, representing yet another way in which a Supreme Court clerkship can be a ticket to top-tier career opportunities.

    •  And finally (0+ / 0-)

      You're also incorrect about the "case or controversy" issue.

      So long as he's being held in detention, regardless of whether DOJ would ultimately not defend the decision in the Supreme Court, there's an active case or controversy.

      Moreover, even though he's now been released from indefinite detention, there's likely still a "case or controversy" for Constitutional purposes.  The Supreme Court has announced an exception in cases where the party allegedly committing the wrongdoing voluntarily ceases the activity.  See Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000).  Basically, the theory is that a party should not be able to avoid ultimate judgment on its behavior by voluntarily stopping before the Court has a chance to do something about it.  I assume that's what the ACLU will argue to SCOTUS with respect to Al-Marri.

      And even if the Supreme Court considers it moot, the Fourth Circuit's decision will most likely be vacated.  See United States v. Munsingwear, Inc., 340 U. S. 36, 340 U. S. 39 (1950) ("[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.")

      •  Ah, I see (0+ / 0-)

        If I understand what you wrote correctly, it seems like an exception to the usual rule, to avoid gaming of the system. We'll see what the SC has to say, but my guess is that they will not reach out to try to resolve this question once and for all, since  al Marri will be going into the criminal justice system anyway.

        I'm glad to hear about the possiblity that the 4th circuit decision will be vacated, that's a very bad precedent to leave on the books.

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