Getting Gitmo

In what both civilian and military legal experts consider an "extraordinary" filing challenging the authority of their commander-in-chief,

[f]ive uniformed military lawyers assigned to defend detainees at Guantanamo Bay, Cuba, have filed a brief with the Supreme Court, challenging the basis of President Bush's plan to use military tribunals without civilian court review to try some of the detainees there.

In their 30-page brief, filed late Wednesday, the lawyers assert that President Bush worked to "create a legal black hole" and overstepped his constitutional authority as commander in chief in the way he set up the program for military tribunals. ...

"Under this monarchical regime, those who fall into the black hole may not contest the jurisdiction, competency or even the constitutionality of the military tribunals," the defense lawyers wrote. They said they were not taking a position on whether the president may deny habeas corpus to people simply detained at Guantanamo, but once he puts them before a tribunal as the government is contemplating, "he has moved outside his role as commander in chief."

While the lawyers themselves tried to downplay the significance of the brief, saying it was just part of their duty to defend their clients, I think it's safe to say that they were not unaware of it - and that it's not a development that was expected by the Bushites when they set this system up. And while tyring to predict what the Supreme Court will do is often a fool's errand (albeit one I've already engaged in on this score), it'd hard to imagine that the significance will be lost on the Justices.

At least I hope so.

Footnote: The article also mentions that

[o]ther briefs objecting to the detentions include one on behalf of 175 members of the British Parliament who said "the exercise of executive power without possibility of judicial review jeopardizes the keystone of our existence as nations, namely the rule of law."

Signers included five former law lords, the rough equivalent of United States Supreme Court justices, two of them former chief law lords. The barrister who organized the petition said he "could have gotten a couple of hundred more [signatures] if one had a few more days."