Tuesday, March 28, 2006

The Supreme Court hears a "Wha-Wha-What!"

And the Washington Post article has no mention of Tony Peanuts recusing himself.
A long-awaited test of the judiciary's power during wartime came to the Supreme Court today, and, contrary to the urgings of the Bush administration, the justices do not seem inclined to duck it.

During a 90-minute oral argument on the legality of the military commissions President Bush has set up to try suspected terrorists, most members of the court resisted -- sometimes sharply -- the administration's request to dismiss the case because of a new federal law circumscribing appeals by suspected terrorists.

A key comment came from Justice Anthony M. Kennedy, the closely divided court's moderate-conservative swing voter. He told Solicitor General Paul D. Clement that he has "trouble with the argument," that, because of the new law, court challenges to the commissions must wait until the trials are over.

"I had thought that the historic function of habeas corpus is to . . . test the jurisdiction and legitimacy of a court," Kennedy said. Habeas corpus is the legal vehicle through which prisoners challenge the lawfulness of their detention by the executive.

The court's defense of its turf does not bode well for the Bush administration's broader arguments in defense of the military commissions, but it was still unclear how the justices might ultimately rule on the merits of the case.

Kennedy pitched one approach, under which the court might uphold the military commissions, as the administration wants, but require that they proceed in accordance with the Geneva Convention, an international treaty that protects war detainees, as its opponents urge. Then, he suggested, the court could "just remand it for [a lower court] to go into all these arguments."

Other members of the court seemed attracted to invoking the Geneva Convention, saying that the administration's position creates a double standard because it accuses alleged terrorists of violating the laws of war while denying them the protections of international law.

"I don't see how you can have it both ways," Justice David H. Souter told Clement.
It can be hard to predict a court decision, but they don't sound like they are making favorable noises. Like lesser mortals, the justices can be expected to to protect their turf.

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