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Supreme Court to Hear Detainee Case Next Term

In a brief but highly unusual order issued this morning, the Supreme Court reversed course and agreed to hear the Guantanamo detainee case, concerning  the constitutionality of the administration's policy of detaining so-called enemy combatants without allowing them to challenge the legality of detention through use of a writ of habeaus corpus. The New York Times covers the story  here. According to the article, the reconsideration -- which required support from five justices -- "signaled that [they] had determined they needed to resolve a new politically and legally significant Guantanamo issue, after two earlier Supreme Court decisions that have been sweeping setbacks for the administration’s detention policies." 

Lyle Denniston offers additional insight on the Court's change in course:

Under the Court's Rules and precedents, it would have taken the votes of five Justices to grant rehearing, compared with the requirement of four votes to initially grant an appeal. When the Court denied review in April, only three Justices voted to hear the cases. But two of the other six, Justices John Paul Stevens and Anthony M. Kennedy, indicated they wanted the detainees to first attempt to get legal relief in the D.C. Circuit. Under the Detainee Treatment Act, the Circuit Court has the authority to provide limited review of military decisions to continue holding Guantanamo prisoners as "enemy combatants." Friday's order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing. (It is a fair assumption that Chief Justice John G. Roberts, Jr., was not in favor of rehearing; in an in-chambers order he issued on an earlier procedural matter in the detainees cases [applications 06A1001 and 06A1002] on April 26, Roberts opined that "possible court action" in the D.C. Circuit Court would not be enough to justify a grant of review in the face of the April 2 denial.) Under the Court's rules, a rehearing is granted only if there has been a change in "intervening circumstances of a substantial or controlling effect" or if counsel can cite "substantial grounds not previously presented." The new order did not state what changes had come about since the denial in April. The detainees' lawyers, in their rehearing petition, had said that the unfolding of the review process in the D.C. Circuit Court would soon provide them with an argument for rehearing, since the process would be shown to be inadequate. More recently, the detainees' lawyers had told the Court that information from inside the Pentagon detainee-review process confirmed their claim that the process was a "sham."

And in a later post, SCOTUS Blog summarizes the questions presented in the detainee cases. The main questions from the lead case are:

1. Whether the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay. 2. Whether Petitioners’ habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.

With only two years left in Bush's term in office, the Court could have easily avoided these issues and left the potential for change in policy to another administration. By stepping in now, the Court will clarify these issues not just for this administration but for those to come.

Posted by Carolyn Elefant on June 29, 2007 at 05:44 PM | Permalink | Comments (0)


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