Supreme Court Reverses Course on Gitmo


Today, the U.S. Supreme Court announced that it will hear argument on the issue of whether Guantánamo detainees have a right to challenge their detentions in American federal courts. This is surprising since in April the Court had ruled that they would not accept this case. The Court seems to have a solid five justice conservative majority--this order suggests to me that at least one member of this majority is having second thoughts about the issue.

Here is the report from the New York Times:
The United States Supreme Court reversed course today and agreed to hear claims of Guantánamo detainees that they have a right to challenge their detentions in American federal courts.

The decision, announced in a brief order released this morning, set the stage for a historic legal battle that appeared likely to affect debates in the Bush administration about when and how to close the detention center that has become a lightning rod for international criticism.

Lawyers for many of the 375 men now held at the naval station on a scrubby corner of Cuba greeted the unexpected news with euphoria, saying it appeared the court was headed toward a ruling on one of the central principles of the administration’s detention policies: the claim that the government can hold people the military labels enemy combatants without allowing them to use the ancient legal tool of the writ of habeas corpus, a legal action used in English law for centuries to challenge the legality of detentions.

“Finally, after nearly six years, the Supreme Court is going to rule on the ultimate question: does the constitution protect the people detained at Guantánamo Bay?” said Neal Kaytal, a Georgetown University law professor who argued the last Supreme Court case dealing with the Guantánamo detainees. In that case, decided last June, the justices struck down the administration’s planned system for war crimes trials of detainees.

The issue in the case the court agreed to hear on Friday is whether the Congress can strip the federal courts of the power to hear such habeas corpus cases filed by Guantánamo detainees. In legislation passed after last June’s Supreme Court ruling, Congress included a provision barring such suits by the detainees.

“The Supreme Court has taken a giant step toward ensuring the detainees a day in court,” said David H. Remes, a Washington lawyer who represents Yemeni detainees at Guantánamo.

Today’s order was a different result than the justices reached on April 2, when they ruled that they would not hear the case at that time. Unusual language in that order had suggested some maneuvering among the justices on whether or when they should again get involved in the tangled legal questions presented by Guantánamo.

It is too early to predict what the Court will do, but I think that the Court is clealry quite uncomfortable with the notion that decisions made in Guantánamo are not subject to judicial review. My own view is that if the Bush Administration had, from the start, complied with International Law and had both treated these prisoners as POWS's (albeit ones that may be unlawful combatants) and applied the Uniform Code of Military Justice to any trials, the Supreme Court would never have entertained a request for relief. I think that it is only considering doing so now because the Administration has taken such an extreme position.

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