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EPA must consider global warming again Monday, April 02, 2007 Analysis: Court denies detainees' habeas cases Posted by Lyle Denniston at 10:03 AM The Supreme Court on Monday denied review in two new Guantanamo detainee cases. Three Justices dissented, and two others wrote separately about the denial. Had any combination of four of those Justices voted for review, of course, the cases would have been granted. The action of the Court, although nowhere near to being a ruling on the actual issues involved, nevertheless was a sweeping victory for the Bush Administration, and put the fate of the detainees primarily in the hands of the US military at Guantanamo Bay, Cuba, with only limited -- and later --- review in the civilian courts. The practical results, so far as the detainees are concerned, are that they no longer have any right to file a habeas challenge to their detention or to their designation as enemy combatants because Congress has taken that away and the lower court ruling that the Court left undisturbed Monday upheld that withdrawal, those not charged with war crimes must now go through a military-only review of their enemy combatant status in proceedings that the detainees' lawyers consider seriously inadequate; some had had that review, but there is a question whether another is to be held for most of them, those charged with war crimes must now go through trials before new "military comissions" with procedures also widely attacked as inadequate and can go further only if convicted, and detainees in both groups, after going through those two processes, have only a limited right to challenge their detention status or their military commission convictions in the DC Circuit Court, with possible later review by the Supreme Court -- a process that, in its entirety, could take months, and maybe longer. The Court's Orders List contained no entries to indicate how the Justices might react to a separate pending appeal by two detainees facing military commission trials Hamdan/Khadr v Gates, 05-1169). But, in view of the denials in the other detainee cases, the prospects for review of that case are remote, at most. The Court's denial of review of the two cases was not explained, as usual. But the two Justices who filed a separate "statement," John Paul Stevens and Anthony M Kennedy, said that the Court had passed up review to avoid deciding constitutional issues before the detainees had used their "available remedies" under federal laws -- the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. Those Justices warned, however, that if the government later is found to have engaged in "unreasonable" delay of those remedies, or caused "some other and ongoing injury," then "alternative means exist for us to consider our jurisdiction" over the detainees' allegations. They added that the Court's denial of review does not amount to an expression of "any opinion" on the merits of the detainee claims. Even so, the detainees' situation for some time to come will be governed solely by the DTA and the MCA, with no role for federal habeas courts. Justice Stephen G Breyer, joined by Justices David H Souter and Ruth Bader Ginsburg, dissented from the denial. Breyer and Souter also said they would not only grant review, but expedite it. It was apparent from the array of votes publicly recorded in the cases that those Justices who wanted to hear the cases, now or next Term, very likely had failed to attract the support of Justice Kennedy. While Justice Stevens probably would have been inclined to vote for review, that woud have meant only four votes for review, enough for review but leaving the outcome on the merits uncertain because of Kennedy. Thus, Stevens appeared to have opted to join with Kennedy in writing separately to salvage some prospect of ultimate relief for the detainees if the government does not deal promptly or fairly with the detainees. The nature of that potential relief, however, was uncertain. Stevens and Kennedy indicated that the Court retained authority under both the All Writs Act and the general habeas corpus law. But Congress, in enacting the court-stripping provisions of the Military Commissions Act, appeared to have moved to cut off any remedy other than the limited review in the DC Circuit. It is unclear what the scope of Supreme Court review would be beyond that, in any new appeal to the Justices. The Court did not grant review of any new cases on Monday. In a separate order (not included on the Orders List), the Justices raised a new issue that might prevent them from deciding a significant case on imposing a death sentence on a mentally impaired individual. The case is Panetti v Quarterman (06-6407), which is now scheduled for oral argument on Wednesday, April 18, at 1 pm The Court added this question, with instructions to counsel to file new briefs on it by April 11: "Must petitioner's habeas application be dismissed as 'second or successive' pursuant to 28 US C 2244?" The Panetti case raises the question of whether the death penalty is cruel and unusual punishment for an individual whose mental illness includes a delusion about why he faces execution. Among the actions noted on the regular Orders List, the Court chose to bypass three significant new cases: ** It declined to hear a new case on the duty of schools receiving federal funds to arrange for equal opportunities in sports for boys and girls. The new case involved a Sixth Circuit Court ruling that a Michigan state agency had violated Title IX on gender bias by scheduling all high school girls' sports seasons at times of the year less advantageous than boys' sports seasons. The case was Michigan High School Athletic Association v Communities for Equity (06-1038). The case involved a Ninth Circuit ruling that prisons may be held liable for creating a hostile work environment because of lewd sexial misconduct by inmates toward female guards. Comments Obviously, haven't seen the Stevens/Kennedy statement yet, but... One of the claims being that the available remedies are inadequate shams, how can an insistence on the exhaustion of those remedies be anything other than an "opinion" - and clearly a negative one - on the merits of that claim? For that matter, what "other and ongoing injury" do they want? Or is this one of those situations Professor Lidquist told us about, where something can be a flawless ethical argument and a strong policy argument but an execrable legal argument?
Today at the Supreme Court: 4/2/07 Calendar * 03/23/2007: Conference * 03/26/2007: Orders; Leegin Creative and Bowles v Russell args * 03/27/2007: Poss. Tellabs v Makor arg * 03/30/2007: Conference * 04/02/2007: Orders;
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