Thursday, January 20, 2005

This week in law and policy

The major news this week is, of course, Condoleezza Rice's imminent confirmation as Secretary of State. For a great entry about some of the implications, see Simon's "A test of progressive values" just below. The confirmation will occur amidst worsening news from Iraq, including more bombings ahead of elections projected for January 30 and retired four-star General Gary Luck's recommendations that the United States send thousands of Army "advisers" to work with individual Iraqi security units. At the same time, growing dissatisfaction among House members has led to a congressional report, drafted by Rep. Marty Meehan (D MA), that proposes removing the "vast majority" of US troops from Iraq within the next 12-18 months. Given Dr. Rice's indications that no significant changes in Iraq policy are forthcoming, the implications of such developments are unclear.

Jurist reports that Judge Leon of the DC District Court dismissed the habeas corpus petitions of seven Guantanamo Bay detainees this week (Khalid v. Bush and Boumediene v. Bush); the judge apparently relied on this summer's SCOTUS decision mandating tribunal review of detainees' requests:

Thus, to the extent these non-resident detainees have rights, they are subject to both the military review process already in place and the laws Congress has passed defining the appropriate scope of military conduct towards these detainees. The extent to which these rights and conditions should be modified or extended is a matter for the political branches to determine and effectuate through either Constitutional amendments, appropriate international entities. Thus, until Congress and the President act further, there is similarly no viable legal theory under international law by which a federal court could issue a writ.

Judge Leon also ruled that foreign nationals captured and held outside the United States have no constitutional rights and that the post-September 11 Congressional authorization of the GWOT gaive the President the power to detain terrorist suspects anywhere in the world. Link to the decision via

DC District Judge Joyce Hens Green is currently deciding whether to grant a government motion to dismiss another habeas case involving Guantanamo detainees. If Judge Green follows Judge Leon by granting the motion, she would strengthen the government's argument that Guantanamo Bay detainees have no rights that US courts must respect. If so, the June 28 ruling on Rasul/Al Odah v US and Hamdi v Rumsfeld would seem a hollow victory. Watch for that decision soon.

In another decision affecting Guantanamo detainees, the Supreme Court declined to review the constitutionality of military tribunals set up there; the Court preferred to allow the DC Circuit Court to hear the case first. It's scheduled for March 8.

SCOTUSblog has published a detailed list of the March arguments at


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