Greenhouse Previews Hamdan Argument

by TChris

On Tuesday, the Supreme Court will hear Salim Ahmed Hamdan's plea for federal court review of his indefinite detention as an enemy combatant. TalkLeft background regarding Hamdan's case is collected in this post. Linda Greenhouse previews the arguments here.

Before the Court considers whether Hamdan is entitled to habeas corpus relief, it must decide whether it has jurisdiction to hear Hamdan's case. As TalkLeft predicted here, the Bush administration is arguing that the Detainee Treatment Act stripped the Court's ability to hear requests for relief from Guantanamo detainees -- including those, like Hamdan, who filed a petition before the DTA took effect.

Having participated in the Fourth D.C. Circuit's resolution of Hamdan's appeal, Chief Justice Roberts recused himself, raising the possibility of a 4-4 tie. Greenhouse asks an intriguing question: does a tie favor the exercise or the loss of jurisdiction?

A tie vote in the Supreme Court ordinarily simply affirms the lower court decision, without issuing an opinion or setting a precedent. But in this case, there is no lower court opinion on the jurisdictional question, since there was no Detainee Treatment Act when the appeals court ruled last July.

It would require a majority, five of the eight votes, to grant the government's motion to dismiss the case, but the matter might not be as straightforward as that. Even if the government had not filed its motion, the court would still be obliged to assure itself that it has jurisdiction to proceed, in this as in any other case. Whether a tie favors jurisdiction or dismissal appears to be an open question of Supreme Court procedure.

Update, by Last Night in Little Rock (early Monday): According to PaperChase and Newsweek, in a speech in Switzerland on March 8,

Scalia said bluntly that "foreigners, in foreign countries, have no rights under the American Constitution." In reference to detainees receiving civil court trials instead of facing military tribunals, Scalia said of a prisoner, "If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy."

Once again, Justice Scalia, so free to speak his mind, checks his judicial ethics at the door and tells the public how he is going to vote. He wiggled out of it in the "duck blind justice" case, but it is appearing more and more that Scalia's judicial temperament, something already akin to an oxymoron, is a thing of the past.

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    Re: Greenhouse Previews Hamdan Argument (none / 0) (#1)
    by Talkleft Visitor on Mon Mar 27, 2006 at 12:04:11 AM EST
    Scalia recently stated that detainess have no rights: Scalia Criticizes Europe on Gitmo Supreme Court: Detainees' Rights--Scalia Speaks His Mind People are calling for him to recuse himself.

    Re: Greenhouse Previews Hamdan Argument (none / 0) (#2)
    by Talkleft Visitor on Mon Mar 27, 2006 at 04:39:49 AM EST
    Recuse himself, he oughta remove himself. This clown is one conflict after another and one arrogant outburst after another. It's not his intellect that's in question, it's his total lack of integrity.

    Re: Greenhouse Previews Hamdan Argument (none / 0) (#3)
    by Peter G on Mon Mar 27, 2006 at 07:02:16 AM EST
    Chief Justice Roberts sat on the D.C. Circuit, which heard the Hamdan appeal. It wasn't the Fourth Circuit.