Linda Greenhouse, a fabulous Supreme Court reporter for decades, has a few thoughts on Gitmo and the Supremes:
Among the things we’ll learn by the time the Supreme Court recesses for the summer is whether the justices are finished with Guantánamo.
Of course, the court won’t post a sign declaring “No más Guantánamo.” The point is that the justices are scheduled in the coming days to consider whether to hear any of the half-dozen new appeals filed in recent months on behalf of detainees at the United States naval base in Cuba. One is an appeal of a framework-shifting appellate ruling that makes it nearly impossible to challenge the validity of the intelligence reports on which the government relies for most of the continuing detentions. If the Supreme Court turns all the cases down, as is quite likely and as the Obama administration is urging, the message will be the same: We’re through.
Whether that outcome should be a cause of regret is open to debate. It’s hard to imagine good law coming out of a renewal of the Supreme Court’s interest at this point. If the justices were troubled by the government’s use of hearsay evidence or the other procedural issues that detainees’ habeas corpus petitions have raised during the last few years, they would have intervened by now rather than regularly turning down earlier appeals.
The fate of the detainees, now numbering 169 and in some instances entering a second decade of confinement, was after all never the court’s principal interest. It was primarily a separation-of-powers concern that fueled the inter-branch drama of 2004 to 2008, during which a shrinking majority, over increasingly sharp dissents, pushed back against the Bush administration and Congress to assert the court’s own institutional authority.