Detainee rights & the Court.

Today the New York Times published Linda Greenhouse's helpful preview of Wednesday's Supreme Court hearings, when detainee lawyer Seth Waxman will argue that--contra the Military Commissions Act of 2006 (MCA)--federal judges do have jurisdiction to hear the cases of Guantanamo Bay detainees. The Bush administration will argue that the MCA cut the Court out of the process, and that we need not worry about habeas corpus because detainees are enjoying an adequate substitute thanks to the military tribunals set up by the act.

As substitutes for habeas corpus, the tribunals are structurally and incurably inadequate, Seth P. Waxman, a lawyer for six Algerian detainees, asserts in his brief. By sharply limiting access to evidence and witnesses and by forbidding defense lawyers from participating in the hearings, he says, the alternative procedure fails to offer even the most elemental aspects of an independent adversarial proceeding.

The administration also will argue with a straight face that today's Gitmo detainees "enjoy more procedural protections than any other captured enemy combatants in the history of warfare"--as though prisoners in the so-called war on terror bear much resemblance to "other captured enemy combatants in the history of warfare." Yet even if the Court rules in favor of detainees, it's likely that the issue will come back to the Court once lower courts are allowed to review cases.

(Lucky for Bush, the detainees at a secret CIA holding cell in Jordan--yes, Jordan-- won't be petitioning the Court anytime soon.)

For Jonathan Hafetz's take, check out the Balkinization blog. (Also worth reading there: Stephen Griffin's reflections on Bush v. Gore.)

Grant Gallicho joined Commonweal as an intern and was an associate editor for the magazine until 2015. 

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