Supreme Court Changes Mind, Will Hear Two Gitmo Challenges
Scotus Blog reports that in a change not seen since 1968, the Supreme Court has reversed course in two Guantanamo cases. Months ago it denied the detainees' Petitions for Writ of Certiorari, refusing to accept their cases.
Today, by a ruling of at least 5 to 4, which is required for such a change, the Court reversed itself and said it will hear the appeals.
The Court's order is reprinted below:
BOUMEDIENE, LAKHDAR, ET AL. V. BUSH PRESIDENT OF U.S., ET AL.
(06-1196 ) AL ODAH, KHALED A. F., ET AL. V UNITED STATES, ET AL.
The petitions for rehearing are granted. The orders entered April 2, 2007, denying the petitions for writs of certiorari are vacated. The petitions for writs of certiorari are granted. The cases are consolidated and a total of one hour is allotted for oral argument. As it would be of material assistance to consult any decision in Bismullah, et al., v. Gates, No. 06-1197, and Parhat, et al., v. Gates, No. 06-1397, currently pending in the United States Court of Appeals for the District of Columbia Circuit, supplemental briefing will be scheduled upon the issuance of any decision in those cases.
The forthcoming D.C. Appeals Court decision D.C. Circuit pertains to judicial review under the Detainee Treatment Act of 2005.
Scotus Blog also says:
Friday's order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing. Under the Court's rules, a rehearing is granted only if there has been a change in "intervening circumstances of a substantial or controlling effect" or if counsel can cite "substantial grounds not previously presented."
The new order did not state what changes had come about since the denial in April. The detainees' lawyers, in their rehearing petition, had said that the unfolding of the review process in the D.C. Circuit Court would soon provide them with an argument for rehearing, since the process would be shown to be inadequate. More recently, the detainees' lawyers had told the Court that information from inside the Pentagon detainee-review process confirmed their claim that the process was a "sham."
So, what's up? I'll be looking for reactions by those more familiar with high court procedural rules than I am, but at first glance, it sounds to me like the Court wants to say something about the circumstances under which a detainee can seek review of a military commission decision in a federal court or how federal courts are to treat that review.
TalkLeft last discussed some of the deficiencies in the appeals process from Military Commission Act decisions here.
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