* Al Marri v. Pucciarelli (08-368) – cert granted
The Supreme Court has granted cert in connection with the Fourth Circuit’s splintered en banc decision in Al-Marri, and thus is set to engage the questions whether the 9/18/01 AUMF authorizes—and if so whether the Constitution allows—military detention of a noncitizen seized in the U.S. in connection with allegations of being an al Qaeda agent.
One wonders whether the Court will reach the merits, however. It is not difficult to imagine the Obama administration deciding to shift Al-Marri back to the civilian criminal justice system to face material support or other charges (to be followed by deportation upon completion of any sentence). That assumes, of course, that there is sufficient admissible evidence to support that course, which may or may not be the case.
By Robert M. Chesney
Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.
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