Legal Commentary

SCOTUS Vacates 4th Circuit Al-Marri Precedent

By Big Tent Democrat

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

Full post as published by TalkLeft on March 07, 2009 (boomark / email).