Wednesday, December 5, 2007

Gitmo, round 3

Today the U.S. Supreme Court embarked on its 3d voyage in 3 years to Guantánamo Bay.
Justices convened at 10 to hear an hour of oral argument in Boumediene v. Bush, the title for consolidated cases brought by many of the noncitizens whom executive officials seized abroad in the years since 9/11 and then transported to the naval base that the United States has operated for more than a century at the southeastern corner of the island of Cuba.
Arguing on behalf of detainees were Seth P. Waxman, who served as Solicitor General, the United States' chief appellate attorney, from 1997-2001 and is now a D.C.-based private practitioner. Arguing on behalf of the government was Paul D. Clement, the current Solicitor General.
As detailed in briefs about which IntLawGrrl and amicus author Beth Van Schaack* has posted, discussion promised to cover both jurisdictional and merits issues. Preargument, these seemed like likely key concerns:
1st, may U.S. courts consider legal challenges brought by these detainees? In Rasul v. Bush (2004), 1 of 3 judgments in the 1st round of Gitmo litigation, the Court ruled that nothing in the federal habeas statute precluded so extending the "privilege of litigation." Congress responded by rewriting the statute, not just once but, after the Court rebuffed the 1st attempt in Hamdan v. Rumsfeld (2006) -- Gitmo, round 2 -- twice. With regard to that 2d effort, contained in the Military Commissions Act, the Court will determine whether Congress indeed intended to curtail federal litigation and, if so, whether the Constitution permits such curtailment.
2d, assuming that the litigation may go forward, do the special military panels set up in the wake of the 2004 judgments satisfy legal requirements for reviewing the lawfulness of detention? Evidence supporting petitioners' contention that the panels are procedurally deficient and unduly skewed toward the government's side have come from a number of sources, among them the Denbeaux studies of CSRT transcripts and, at the appendix to this filing, an affidavit from officer who served on those panels.
UPDATE: The Court's now released to the internet both an audio tape and written transcript of this morning's argument. For a roundup on commentary so far, see SCOTUSblog.

* Other IntLawGrrls with a hand in today's arguments: Amicus author Jenny S. Martinez, and Kristine A. Huskey, whose representation of certain detainees is described here. Have I forgotten anyone?

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