A Boumediene sequel bypassed
on Jan 25, 2010 at 10:19 am
(UPDATE: Further new material added at 1:32 p.m.)
Over the vigorous dissents of two Justices, the Supreme Court refused on Monday to clarify whether individuals in custody by the U.S. government may rely on the protections of the Geneva Convention for prisoners of war — an issue left at least partly unresolved by the Supreme Court’s ruling in 2008 in Boumediene v. Bush and earlier detainee cases. The denial came as the Court appeared to clear the way for the extradition of the former Panamaian dictator, Gen. Manuel Antonio Noriega, to France for a trial on illegal drug charges.
Justice Clarence Thomas, joined by Justice Antonin Scalia, argued in dissent that the lower courts need guidance on the Geneva question. Noriega, who has completed his sentence after conviction in U.S. courts, tried to invoke the Geneva Convention to prevent his transfer to France for prosecution. He had been declared a prisoner of war, but the Eleventh Circuit Court ruled that Congress had taken away the right of anyone to pursue a habeas or other civil claim under the Geneva Convention. His appeal in Noriega v. Pastrana (09-35) argued that the Eleventh Circuit ruling resulted in “the complete repudiation of the Geneva Convention.”
Thomas wrote that the Court should review the Geneva issue to “provide much-needed guidance” on issues “with which the political branches and federal courts have struggled since we decided Boumediene….It is incumbent upon us to provide what guidance we can on these issues now. Whatever conclusion we reach, our opinion will help the political branches and the courts discharge their responsibilities over detainee cases, and will spare detainees and the Government years of unnecessary litigation.”
The Noriega case, the dissenters added, involves a conviction in regular federal court, in a case “uncomplicated by classified information or issues related to extraterritorial detention.” That, too, is a reason the Court should step in now, to rule in a case “insulated from the pressures of the moment.” The dissenters also argued that the Geneva issues are likely to figure in the Obama Administration’s planned prosecutions of the 9/11 suspects and others in federal court, and in the Administration plan to detain others for extended periods without charges.
The Court took an unusually long time to dispose of the Noriega petition. It first examined the case at the Oct. 9 Conference, and the case was re-listed for ten subsequent Conferences.  Justice Thomas produced a comprehensive, 15-page dissenting opinion during that time. The opinion digs deeply into the record of Noriega’s case in lower courts, pores over a number of Guantanamo cases in the District Courts in Washington and in the D.C. Circuit Court, and thoroughly analyzes the government’s arguments in trying to head off Supreme Court review. It is careful, however, not to telegraph a view on the merits of the issues that the two Justices argue should have been heard in Noriega’s case.
The Court, as usual, said nothing about why review was denied. It may well be that some of the issues that the Thomas opinion discussed will figure in the Court’s hearing March 23 in the Guantanamo case the Justices are reviewing this Term — Kiyemba v. Obama (08-1234).
Among the other actions Monday, the Court sent a number of signals:
** It indicated that, at least for now, it is not going to reconsider its controversial ruling last Term in Melendez-Diaz v. Massachusetts, reinforcing the right of individuals on trial for crimes to challenge the prosecution’s use of crime laboratory results by questioning the chemists who prepared them. After hearing argument January 11 in a sequel case, Briscoe v. Virginia (08-11191), the Court sent the case back to the Virginia Supreme Court for a new review in light of Melendez-Diaz. It did not explain the order, other than to say the state court was to act in a way “not inconsistent with” the prior ruling. Thus, that decision remains fully intact; a group of states had urged the Court to overrule it. Justice Scalia — the author of Melendez-Diaz‘s majority opinion — contended during oral argument that the Court had granted review in Briscoe just to give it a chance to undo the prior ruling (see the SCOTUSblog argument recap).
** The Court sent uncertain signals about how it is approaching the major test case on the scope of the right to have guns, under the Second Amendment. It voted to allow the National Rifle Association to join in the argument, over the opposition of the Chicagoans and gun rights groups that brought the case. The NRA, whose own petition was not granted by the Court, asked for time at the podium.  The Court’s order granting it an unspecified time perhaps meant that the Justices thought it was only fair to let the NRA join in, but it may also have been a signal that they wanted to be sure of a fuller argument on whether the Constitution’s Due Process Clause would provide the best judicial vehicle for applying the Second Amendment to state and local laws, if the Court is going to do so. A third possibility is that the Court simply wanted to hear from the NRA’s lawyer in the case, former Solicitor General Paul Clement. The Court refused to allow a group of thirty-eight states to join in the argument — a request that the petitioners had supported. (UPDATE 12:35 p.m. The NRA will have 10 minutes of time, with the petitioners having 20 minutes, and the cities involved the usual 30 minutes.)
