Comments on: Court switches, will hear detainee cases

By: Allan Ryan

Allan Ryan — Sat, 30 Jun 2007 19:59:35 +0000

Kennedy’s switcheroo on granting cert has effectively obviated any October argument on the merits. On detainee issues, the administration has repeatedly demonstrated that it will do whatever it can to avoid having the judiciary decide the issue. It mooted out Padilla by dropping “enemy combatant” charges and it sought the dismissal of all pending habeas cases on the basis of MCA.

Here, the administration will likely either revise the CSRT process to provide full due process rights or shut down Gitmo and move all the detainees stateside. The practice of this administration is to avoid judicial reckoning when they think they’re going to lose.

By: Jacques McKenzie

Jacques McKenzie — Fri, 29 Jun 2007 20:40:41 +0000

Yes, and my prediction about the school cases taking so long to come out because the dissents were weighty and there was a conservative concurrence — that may have been wrong, too.

By: Howard Gilbert

Howard Gilbert — Fri, 29 Jun 2007 19:47:25 +0000

This may be unusual, but it is also consistent. This package of Habeas cases was decided by the DC Circuit about a year before it will finish a second set of CSRT appeals involving the same people and issues. In April the Justices indicated that they wanted to first let the CSRT appeal process work itself out before deciding if it was adequate or if a separate Habeas/constitutional question had to be decided. Since then the DC Circuit has made it clear that it will not, on its own initiative, put the Habeas cases on some sort of undead life-support to await the outcome of the CSRT cases. Granting cert keeps the Habeas cases alive, but the accompanying comments indicate that they will still not be considered until after the CSRT appeals are decided. The only thing that really changed is that SCOTUS finally took responsibility for creating a form of suspended animation for cases that the DC Circuit decided was not within its authority. Reading anything more into it at this time, particularly comments about vote counts and merits, may be a mistake.

By: Jacques McKenzie

Jacques McKenzie — Fri, 29 Jun 2007 17:37:16 +0000

If you set out a rule now, you have it later to crush al-Marri.

By: Taylor Reynolds

Taylor Reynolds — Fri, 29 Jun 2007 14:47:49 +0000

The order granting the rehearing petition is beyond strange. It would be of "material assistance" to "consult any decision" in Bismullah and Parhat? Well, of course it would -- those are the cases addressing the procedures that SCOTUS originally thought the Boumediene petitioners hadn't exhausted. (Or, at least, that's what the statement by Kennedy and Stevens implied.)

If I'm a judge on the DC Circuit, why on earth would I move the Bismullah and Parhat cases -- or any of the DTA cases -- along, now that I know that SCOTUS has to address the adequacy of the DTA procedures in order to resolve the ultimate question of whether habeas has been unconstitutionally suspended? In other words, why do the work for them when they're just going to review it de novo anyway? Is it solely for the purpose of developing a record in a court below? But that's why SCOTUS waits until lower courts have reviewed the questions in the first place.

I really can't make hide nor hair of this order, or what events may have led to it (what changed, from a legal standpoint, in between the denial of certiorari before and the granting of the rehearing petition today?), or what in the world the DC Circuit -- or any of the lawyers working on DTA cases in the DC Circuit -- is supposed to do in the meantime. It all seems extraordinarily irregular, at least from a procedural standpoint.

This order has all the makings of something that sounds good in theory (who's really against reviewing the GTMO stuff?), but wasn't really thought out well -- and it's probably going to cause a lot of headaches for the DC Circuit and provide SCOTUS with a bare-bones case for addressing DTA procedures next October, or whenever it hears argument.