In papers filed to the court, government lawyers say the case of Ali al-Marri should be dismissed because he has now been charged in civilian criminal court.
Acting Solicitor General Edwin Kneedler said for the justices to make a finding in the case would "render a hypothetical pronouncement that would not affect the legal rights of (al-Marri) or any other person."
Al-Marri's claim is "entirely abstract" now that he faces trial, Kneedler wrote.
The Obama administration last week sought to dismiss al-Marri's case before the Supreme Court, shortly after prosecutors unsealed a criminal indictment against him.
A legal U.S. resident studying at Bradley University in Peoria, Ill., when he was arrested in late 2001, al-Marri has been held for more than five years in a military brig in Charleston, S.C., after President George W. Bush declared him an enemy combatant. His lawyers have challenged the president's authority to detain—without charge—people legally in the United States.
The Obama administration has asked the justices to render that challenge moot and leave the issue unresolved because al-Marri is headed to a civilian courtroom.
Al-Marri's lawyers filed papers to the Supreme Court late Tuesday asking the justices to keep the case alive because the government "has not renounced the legal authority under which al-Marri was designated and detained as an 'enemy combatant' and has made no commitment that al-Marri will not be re-designated and re-detained as an 'enemy combatant' in the future."
Al-Marri was the only person being held inside the U.S. without being charged, the administration said in court papers, and President Barack Obama "has ordered a comprehensive review of all military detention policies worldwide."
The transfer signals that Obama is likely to handle accused terrorists in a significantly different way from the Bush administration's aggressive use of preventive detention.
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