This morning, the Supreme Court gave an indication that it's in no hurry to begin addressing the habeas corpus issues raised by last year's contemptible Military Commissions Act. As shown on today's Orders List (at p.3, under 06-1169, Hamdan v. Gates), the Court declined to grant a motion for expedited consideration of the petition by two detainees for a writ of certiorari, which would then in turn lead to accelerated briefing and argument of the merits of the case.
While it's almost a certainty that the Court will ultimately consider the key question -- either through this petition or the ones being filed today in Boumediene and Al Odah (see below for more) -- there is now a serious likelihood that given the Court's schedule, there simply may not be enough time left in the current term (ending in late June) for a decision on the merits, meaning that the detainees would have to wait until early autumn to see whether their habeas rights are restored. Given that the Administration has made clear that it intends to commence with military tribunals this summer, the matter could potentially largely be moot by October.
Hamdan Motion to Expedite
I won't go into too much depth here regarding this motion in Hamdan, as I had discussed most of the procedural background in this diary last Friday as part of the Restoring Our Constitution series. (If you haven't done so, please read these other diaries, which are excellently written and provide a wealth of information and analysis you'd be hard to beat anywhere.)
In this morning's order, only Justices Souter and Breyer indicated that they would have granted the motion to expedite, but this should not necessarily be read as a preview of whether the other justices will eventually decline to grant to petition for cert (four votes are required to accept the case for review on the merits).
What was slightly unusual here, and why it could be hard to analyze too deeply as to how the Court could ultimately rule, was that this was a combined petition from separate cases at different stages. Salim Hamdan, whose case had previously been addressed by SCOTUS last June and where it was remanded to the D.C. District Court, had his habeas claim dismissed last December after the Bush Administration had filed papers invoking the MCA, which it claimed stripped the federal courts of pre-determination jurisdiction. The other petitoner here before SCOTUS is Omar Khadr, whose habeas claim was thrown out by the Court of Appeals for the D.C. Circuit two weeks ago as part of the Boumediene and Al Odah opinion.
Boumediene Petition and Motion
As noted in Boumediene's Motion for Expedited Consideration, filed this morning along with his Petition, the government had already agreed to an expedited schedule for review of the main cert petitions arising from the Feb. 20 Circuit Court ruling, so it was a bit odd that it so strongly opposed the Hamdan motion to expedite, as this would merely have set the cases onto the same schedule. The Solicitor General's Office will be submitting its opposition to the Boumediene petition no later than March 21, and it is Boumediene's hope that the Court will consider that matter at its conference on March 30 (as well as the Al Odah petition, which is expected to be filed later this afternoon). Since the opposition to the Hamdan petition will now be due on March 29, it is theoretically possible for it to be considered that same day, but it might well be deferred for at least another two weeks (there is no conference scheduled until April 13).
The core question in all these petitions is quite simple and straightforward. From Hamdan:
Do individuals detained as alleged enemy combatants at the Guantanamo Bay Naval Base in Cuba have access to habeas corpus under the Constitution or by statute?
If the Court determines it to be the former, the court-stripping provision of the MCA would be a nullity. If the latter, then the reforms promoted in the two Senate bills currently under consideration (S.185 and S.576) become even more vital (which they are, regardless of any Supreme Court ruling). See Major Danby's four-part examination of the MCA and these proposed cures for more details.
The questions presented in Boumediene are essentially the same:
- Whether the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay.
- Whether Petitioners' habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.
If the Court grants cert, the Boumediene petition has proposed the following schedule in an attempt to squeeze the case in during the current term:
- April 16, 2007: Petitioners' Brief on the Merits
- April 27, 2007: Government Brief in Opposition
- May 1, 2007: Petitioners' Reply Brief
- May 7, 2007: Oral Argument
It is this potential calendar which would determine whether the Court is able to act on these questions by the end of June. And just because the government had agreed to an expedited schedule for consideration of the petition does not mean that it has also agreed to expedite the merits phase as well. We'll have to wait and see how this plays out. Briefs of amici curiae, of which there would certainly be many, would be due on the dates for the principal briefs for each side.
As the Boumediene petition notes:
This Court should also determine that Petitioners' habeas petitions demonstrate unlawful confinement and warrant a grant of habeas relief or, at the very least, a hearing on the merits. Although the panel majority in the court of appeals did not reach this issue, the matter has been fully aired and is the subject of conflicting decisions in the United States District Court for the District of Columbia, which is the only court in which Guantanamo habeas cases have been filed. The government claims an immense power unprecedented in our history: to imprison foreign nationals, without bringing criminal charges or providing fair process, for an indefinite period. Hundreds of other habeas cases have been stayed in the district court pending the outcome of this case.
This case is unquestionably of national importance; indeed, it is difficult to imagine a public controversy more in need of this Courts guidance. If the decision below is allowed to stand unreviewed, Rasuls promise of judicial review of the merits will prove empty. The Court should grant certiorari and hear the case on an expedited schedule.
It is imperative that the Supreme Court take up these cases and resolve them speedily, and clearly state once and for all that habeas corpus, that most fundamental of rights, is not to be withheld for the purpose of giving cover to improper and immoral actions by this administration. The eyes of the world will be watching.