November 12, 2003

Michael Froomkin Paddles Into Guantanamo Bay

Michael Froomkin thinks about what the Supreme Court's granting certiorari in the Guantanamo prisoners' appeals might mean: What Motivated the Cert Grant In Guantanamo Case?: Maybe I'm just a perennial optimist, but I think the grant of cert. is a marginally good sign. Grants of cert where there's no circuit split can be just because of the importance of an issue, but sometimes they're because members of the court think the lower court(s) erred.

And, as noted in an earlier and better Linda Greenhouse item, something can be learned from

a comparison of how the administration phrased the question presented by the two cases with how the justices phrased it in their order granting review. Solicitor General Olson said the question was whether the federal courts had jurisdiction to decide the legality of detaining "aliens captured abroad in connection with ongoing hostilities and held outside the sovereign territory of the United States at the Guantanamo Bay Naval Base, Cuba."

The Supreme Court, by contrast, said it intended to decide the jurisdiction of the courts to hear challenges to "the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba." The court's question incorporated no assumption about whether the base was or was not ÔÇťoutside the sovereign territory of the United States.

Which at least leaves open the possibility of a fairly narrow ruling applying only to territory where the US has a perpetual lease and a permanent presenence. That would do, for now.

Posted by DeLong at November 12, 2003 03:48 PM | TrackBack


Sounds promising. But I'll rest easier when Robert Novak is in Gitmo until he coughs up the names of the people in the White House who betrayed national security by giving up Ms. Plame.

Posted by: Cal on November 12, 2003 09:23 PM


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