February 20, 2007


Court Backs White House On Gitmo Detainees (CBS/AP, 2/20/07)

Guantanamo Bay detainees may not challenge their detention in U.S. courts, a federal appeals court said Tuesday in a ruling upholding a key provision of a law at the center of President Bush's anti-terrorism plan.

The U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that civilian courts no longer have the authority to consider whether the military is illegally holding foreigners.

Barring detainees from the U.S. court system was a key provision in the Military Commissions Act, which Mr. Bush pushed through Congress last year to set up a system to prosecute terrorism suspects.

"This is a setback for the detainees, but everyone involved in these cases knows that the real battle will be fought at the Supreme Court," said CBS News legal analyst Andrew Cohen.

Why should the Executive even argue its case before a branch that has no authority in the matter?

Posted by Orrin Judd at February 20, 2007 1:23 PM

The supreme court functions as a court of last resort whose rulings cannot be challenged, in some countries, provinces, and states.
Are you trying to say that the Supreme Court has never enforced rulings against the executive branch? Or are you saying that you personally don't accept or respect their judgments in the area of detainee treatment?

Posted by: NFB at February 20, 2007 3:03 PM

The President pushed thru the Military Commission Act in order to respond to the Hamden v Rumsfield decision. It would seem logical that the Supreme Court will now decide if the response was adequate.

Posted by: h-man at February 20, 2007 3:43 PM

h: Actually, I believe that Congress passed the Military Commission Act, and the President signed it. Try not to parrot the MSM's talking points.

Can a lawyer explain to me the issue here? Doesn't Congress have the explicit permission in the Constitution to determine the scope of the jurisdiction of the Judicial branch?

Posted by: b at February 20, 2007 4:31 PM

Yes, the separation of powers requires that the Executive not submit itself to the Judiciary on such matters.

Posted by: oj at February 20, 2007 4:45 PM

I rarely have an original idea so parroting someone else's is sometimes the best I can do.

The President requested (but did not push) Congress to make corrections to the previous statute to accomodate the Supreme Courts decision in Hamden v Rumsfeld. Is that better?

I'm not a lawyer (OJ is), but the answer to your question is yes, Congress can limit the Supreme Courts juridiction. The question is whether they have done this successfully in this case. OJ says the President decides. The Supreme Court MIGHT say they decide. The President has already by his actions indicated that he will let the Supreme Court decide whether their Jurisdiction extends to this subject matter.

Posted by: h-man at February 20, 2007 5:01 PM

So long as they decide in favor of the Executive.

Posted by: oj at February 20, 2007 5:14 PM

"So long as they decide in favor of the Executive"

They have already decided in the Hamden case that they have "subject matter" jurisdiction and on the merits of that case ruled against the Executive. That decision was accepted by Bush, hence this new law. Has he stated that he will not accept an unfavorable decision?

Posted by: h-man at February 20, 2007 5:47 PM

Hamden was a travesty. The justices ruled the US must treat the Gitmo detainees per the Geneva Convention even though the treaty specifically excluded combatants who are not signatories.

Posted by: Gideon at February 20, 2007 6:42 PM

What is important here is that the MCA cures the Youngstown problem with the application of Quirin and Eisentrager to the present situation. A rough rule of thumb to the separation of powers
issues is that any two branches of government trump the third.

The cases are always disappointing. They never setle all the possible cases, only having decided enough, and no more than is necessary to decide the matter then before the Court.

Posted by: Lou Gots at February 20, 2007 8:38 PM

Where's Hamdan?

Posted by: oj at February 20, 2007 9:25 PM

Yes, as a factual matter he's guilty. They can argue that he was lying about issues that weren't material to the investigation.

Posted by: oj at February 20, 2007 9:29 PM