Thursday, November 03, 2005
At tomorrow’s conference, the Supreme Court will consider once again whether to grant certiorari in Hamdan v. Rumsfeld. The revelations this week about the secret prisons that have been operated by the CIA for the last four years will likely weigh on the minds of the Justices as they consider the case. On the surface, the issues raised in the case have little to do with the CIA’s prisons, just as Abu Ghraib had little to do with the triumvirate of detainee cases that the Court decided at the end of OT 2003. But underneath the surface, they are intimately linked. The fact that the Administration has operated a network of secret prisons must lead the Justices to question whether the administration can be trusted to police itself in its operation of the war on terror.
I was asked today whether it was possible that the Court was avoiding Hamdan because of a concern that accepting it and then reversing or significantly narrowing the D.C. Circuit Court's "blank check" might be embarassing to the new Chief Justice who, of course, signed off on the blank check in question. I'm not persuaded that the (or even a) central reason but I'm curious about whether others think such concerns might play any part.
I have been following this case, although I am not a lawyer. My thought is that the Court is delaying until it can be assured that the D.C. Circuit's ruling is NOT overturned. It may be that Roberts, despite recusing himself, foresees the current court overturning the decision, and wishes to wait for the Alito confirmation to avoid any surprises. The President's pressure to confirm Alito prior to the 2006 State of the Union address, and the upcoming 2006 elections are, I'm sure, part of the strategy.
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