At issue at this point are challenges to proceedings known as Combatant Status Review Tribunals that decide whether a detainee should be labeled an enemy combatant. Under the Detainee Treatment Act of 2005, the United States Court of Appeals for the District of Columbia Circuit has sole jurisdiction to hear appeals from the tribunal’s determination. The detainees’ lawyers argue that both the tribunals and the limited form of review in the appeals court are fatally flawed.
The court's decision, which is much more political than the split vote indicates, means that the detainees must first appeal to the U.S. Court of Appeals for the District of Columbia. But organizations, such as Human Rights First, found a silver lining in that 5 of the 9 justices made clear that they were concerned about the pace of justice in this case.
“The delay is disappointing," said Shamsi, "Still, in a separate statement and a dissent, a total of five justices sent the message that they will be watching to see how and with what speed the government proceeds in the detainees’ challenges to their imprisonment"....
“The administration’s Guantanamo detention and trial policy is irretrievably broken,” said Shamsi, who has just returned from monitoring military commission hearings at the U.S. military’s naval base in Cuba. She added, “The Supreme Court’s decision to punt review of the detainees’ cases increases pressure on Congress to restore habeas corpus, which is the Constitution’s safeguard against arbitrary and indefinite detention.”
How did a 6-3 decision get parsed as a 5-4 decision? Greenhouse explains in the Times article:
In this instance, the court offered an unusual degree of transparency, with two separate opinions accompanying the one-sentence order denying the two petitions.
One was a dissenting opinion from three justices, Stephen G. Breyer, David H. Souter and Ruth Bader Ginsburg, who voted to hear the cases as “significant ones warranting our review,” as Justice Breyer said in an opinion that spoke for the three.
The separate opinion was a statement “respecting the denial,” signed jointly by Justices John Paul Stevens and Anthony M. Kennedy. They explained why they voted against hearing the cases. They said the court should follow its usual practice for ordinary prison inmates and require “the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus.”
Greenhouse reasons that the unusual splits and votes on this decision are related to internal court politics. For one thing, the liberal wing appears uncertain whether Justice Kennedy will vote with them on this issue. So Justice Stevens, the putative leader of the liberal wing, voted with Kennedy, as he did not feel the time was right for bringing this case before the full court. Only four votes are needed to hear a case.
Meanwhile, detainee lawyers will certainly try other avenues, as suggested by Stevens and Kennedy, such as the appeal to the D.C. Circuit Court. But the case could easily go to the fall, if not next year. According to the Times, Justices Souter and Breyer were the only justices to argue for expedited appeal. Justice Ginsberg, for reasons I can't fathom, did not join her two colleagues on that portion of their decision.
It seems as if court politics mirrors U.S. politics, and the guinea pigs that are the Guantanamo prisoners must wait longer yet.
Soon, I will be writing on how the suspension of habeas and the indefinite nature of the detainees detention is an integral part of the U.S. torture program, as research has long shown that the effects of isolation and sensory deprivation are accentuated when the victim has no idea when they will stop.
The U.S. has gone so far down this sick and dangerous road, I can't predict how any of this will end.
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