As disappointing as this week has been at the Supreme Court on a wide variety of issues, the justices may help redeem themselves by granting cert in an important habeas case out of Guantanamo.
Rejecting Bush administration arguments, the Supreme Court reversed course and agreed Friday to review whether Guantanamo Bay detainees can use the civilian court system to challenge their indefinite confinement.
The administration argues that a new law strips courts of their jurisdiction to hear detainee cases.
The justices took the action without comment along with other end-of-term orders. In April, the court turned down an identical request, although several justices indicated they could be persuaded otherwise.
The move is highly unusual.
Indeed, as I understand it, this practically never happens. Just two months ago, the Supreme Court rejected an identical filing, so what changed the justices’ minds? They didn’t say, but the AP noted that an Army reserve officer and lawyer who played a key role in the enemy combatant hearings at Guantanamo Bay said “tribunal members relied on vague and incomplete intelligence while being pressured to rule against detainees, often without any specific evidence.” The officer’s affidavit, the first public criticism by a member of the military panels, was submitted to the Supreme Court a week ago. It might have had some influence on the justices.
As Spencer Ackerman noted, habeas might be making a “comeback.”
It’s looking grim for the Military Commissions Act of 2006. The Act, one of the final masterstrokes of the GOP Congress, stripped war-on-terrorism detainees of access to U.S. courts and entrenched the Bush administration’s system of military tribunals.
First, at the beginning of the month, military judges at Guantanamo Bay dismissed charges against two detainees, ruling that the detainees weren’t properly classified as “unlawful enemy combatants,” as the act demands. That prompted Sen. Arlen Specter (R-PA) to worry aloud that the commissions created “too many shortcuts in the whole process.” Then, barely a week later, a panel of the Fourth Circuit Court of Appeals rejected the entire legal category of “unlawful enemy combatant,” a neologism crucial for the Military Commissions Act. And now, today, the Supreme Court announced it will hear a case brought by two other detainees challenging the constitutionality of the act.
The case probably won’t be heard for a few months, but today is an encouraging step in the right direction. Stay tuned.