| I think the Supremes are about to cave. |
The exceptionally unusual order, which required votes from five of the nine justices, gave lawyers for detainees more than they had requested in a motion asking the justices to reconsider an April decision declining to review the same case. Lawyers for detainees had asked only that the court hold the case open for future consideration. TodayÂ’s order meant that the court would hear the case in its next term, perhaps by December.
Experts on the Supreme Court said the justices so rarely grant such motions for reconsideration that the order itself was significant. They said it signaled that the justices 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 administrationÂ’s detention policies.
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. They said 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 “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.
| Makes no sense to let them do so: either they are POWs, and thus outside the civilian court system, or they're illegal combatants, and also outside the civilian court system. The Constitution does not guarantee foreigners held by our military and captured on a battlefield the right to access our civilian courts. |
The Justice Department has argued that the nationÂ’s defense would be imperiled if habeas corpus cases can be used by federal judges to second guess military officialsÂ’ decisions to detain enemies during wartime. "We are disappointed with the decision, but are confident in our legal arguments and look forward to presenting them before the Court," said a Justice Department spokesman, Erik Ablin.
TodayÂ’s order permitting the case to be argued in the Supreme Court was a different result than the justices reached on April 2, when they decided not to hear the case at that time. Unusual language in justicesÂ’ statements accompanying that order had suggested maneuvering among the justices on whether or when they should again get involved in the tangled legal questions presented by Guantanamo.