CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, December 3, 2007

SCOTUS to Once Again Decide if Federal Judges Have Jurisdiction to Hear Guantanamo Cases

Court_front_med_2 From Observers at the Supreme Court on Wednesday should probably be excused in advance for concluding that they have wandered into a time warp.

The question before the court will be whether federal judges have jurisdiction to hear cases brought by detainees at Guantanamo, Cuba. A lawyer for a group of detainees will argue that they do; the Bush administration’s solicitor general will argue that they do not.

But did not the court already decide that question? Did not the justices rule in Rasul v. Bush in 2004 that federal judges could review the legality of the Guantánamo detentions, rejecting the administration’s position that the detainees’ fate was a question for the executive branch alone?

No, history will not just be repeating itself at the court Wednesday. It has moved on, and the four years since the court shocked the administration by agreeing to hear the Rasul case have been busy ones.

Each of the three branches of government has made a series of judgments on how to strike the balance between individual liberty and national security in the post-9/11 era. This latest Supreme Court confrontation, round three of the justices’ encounter with the detainee question, reflects an extraordinary interbranch drama, played out as a series of actions and reactions that has now cycled back to where it began: the role of the federal courts.

This third round is potentially the most momentous, because at stake is whether the Supreme Court itself will continue to have a role in defining the balance or whether, as the administration first argued four years ago, the executive branch is to have the final word.

The roots of the new case, Boumediene v. Bush, No. 06-1195, lie in the court’s second-round detainee case, Hamdan v. Rumsfeld, decided in 2006. The court ruled that the military commission system the Bush administration had set up to try enemy combatants for war crimes was fatally flawed because the president had acted without Congressional authorization. Rest of Article. . . [Mark Godsey]

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