Is the al-Marri case moot?

     In a previous post I described the al-Marri case which is currently before the Supreme Court.  Al-Marri legally entered the United States on September 10, 2001 for the purported purpose of attending school, but the government suspects that al-Marri is an al-Quaeda agent who was sent to the United States to disrupt our financial system.  (I have news for you, Osama - you're too late!)  In 2003 President Bush ordered al-Marri to be detained as an enemy combatant without trial in a South Carolina military prison.  The Supreme Court had agreed to decide whether the government could continue to hold him in military detention or whether the government had to charge him with a crime and try him in federal court.  I predicted that the Supreme Court would rule in favor of al-Marri and that Justice Scalia would join the majority in ordering the government to either charge him with a crime or release him.

     The Obama administration has now indicted al-Marri for the crime of providing material support to al-Quaeda and is transferring him to a civilian jail in Illinois where he will be tried in federal court.  Lawyers representing al-Marri still want the Supreme Court to decide whether or not it was lawful for the Bush administration to have imprisoned him for over five years without trial.  The Supreme Court will have to decide whether the case is now "moot."  Is it?

     "Mootness" is one of a number of legal doctrines that are used to determine whether a dispute is a "case or controversy" within the jurisdiction of the federal courts.  Article III of the Constitution provides that the federal courts have the power to decide certain "cases" and "controversies."  For example, the federal courts are given the power to decide all "cases" that arise under the Constitution and laws of the United States, and all "controversies" between citizens of different states.  But courts have ruled that many types of questions raised in the courts are not "cases" or "controversies."  For example, when the government asks the courts for an "advisory opinion" about the interpretation of the law in a hypothetical case, it is not a "case or controversy" and the courts lack jurisdiction under the Constitution to decide the matter.  Similarly, when a plaintiff lacks "standing," when the plaintiff and the defendant are in "collusion" and are attempting to trick the court into issuing an official ruling, when the matter is not "ripe" because no-one has threatened legal action against the plaintiff, and where circumstances have changed so that there it no longer makes any practical difference how the court rules in the case - in other words, when the case is "moot" - the federal courts have no jurisdiction because these are not "cases or controversies."

     The simplest example of a moot case is when a criminal defendant dies during the trial or while the case is still on direct appeal.  When that happens the law treats the matter as if the indictment had never been brought.  All criminal penalties are rescinded and the trial or the appeal is dismissed.

     But there is an important exception to the doctrine of mootness that is used in extraordinary cases.  When the matter to be decided is one of "great public importance" and the issue is one that is "capable of repetition yet always evading review," the courts will decide the case anyway even if it has become moot.  That is what happened, for example, in Roe v. Wade.  By the time that case reached the Supreme Court Roe had had her baby and the case was moot as far as she was concerned.  Lawsuits take time, and a woman's challenge to a law prohibiting abortion will always be moot before the courts can rule on the legitimacy of the statute.  For that reason the Supreme Court applied the exception to the mootness doctrine and ruled on the merits, finding that women have a constitutional right to terminate a pregnancy prior to viability of the fetus.  Another common situation where the courts decide moot cases is when the winner of an election contends that his opponent or public officials violated the election laws.  It is of course very important that elections be conducted fairly and in accordance with the law, but the courts would never have enough time to decide these matters before the election is over.  Because the integrity of the election law is a matter of great public importance and capable of repeption yet always evading review, the courts decide these cases when the plaintiff won the election despite the fact that ruling will have no practical effect on the outcome of the election. 

     There is no doubt that al-Marri's military detention without trial is a matter of great public importance.  The question is whether this kind of case is capable of repetition yet always evading review, like abortion or election cases.  In the Boumediene case the Supreme Court has already decided that the prisoners detained at Guantanamo Bay are entitled to habeas corpus relief - they may challenge their continued detention in federal court.  If any future President attempts to incarcerate "enemy combatants" like al-Marri without trial the detainees could simply file a petition for habeas relief.  Furthermore, if this happens again the circumstances may be different, and it might not be prudent for the Supreme Court to attempt to predict what might influence the government to hold suspected terrorists without trial in future cases.  I believe that the Supreme Court will simply dismiss the al-Marri case as moot and will handle any future cases as they arise.