Just in passing

From today's New York Times.

The Supreme Court appeared distinctly unreceptive Tuesday to the Bush administration's argument that the federal courthouse doors must remain closed to the foreign detainees at the Guantanamo Bay naval base in Cuba. ...

In addition to Justice [John Paul] Stevens, Justices Ruth Bader Ginsburg, David H. Souter, Stephen G. Breyer and Sandra Day O'Connor also appeared unpersuaded by the administration's arguments.

The issue here, to be clear, is not the justice or legality of holding prisoners - excuse me, "detained personnel" - at Gitmo but rather whether or not they can appeal to federal courts about the matter at all. That is, it's about their right to petition for habeas corpus, "the ancient writ by which prisoners in the English-speaking world have for centuries been able to challenge the legality of their confinement," as the Times put it. Success does not mean the courts have made any judgment about Gitmo, only that a judgment can be made.

The White House's position is that because these are noncitizens held abroad, they have no right to petition the courts at all and thus the courts have no ability to question their imprisonment or their treatment. The executive branch is claiming, in the words of John Gibbons, who argued on behalf of the detainees, the existence of "a 'no law' zone where it is not accountable to any judiciary anywhere."

I haven't had much to say about this of late and probably won't have much more to say about this or the case to be argued next week regarding Yaser Esam Hamdi and Jose Padilla, American citizens held as "enemy combatants" without trial, charge, or access to legal counsel, until a decision is issued. I learned some time ago that trying to predict the outcome of a Supreme Court case on the basis of seeming reactions to oral arguments is a fool's game. But I am, perhaps nonetheless the fool, allowing myself to hope.

Footnote: Solicitor General Theodore B. Olson, arguing on behalf of the White House, opened his presentation by saying "The United States is at war," as if that was the perfect slammer. Unfortunately for him, it "appeared to rankle rather than persuade the skeptical justices." We can only hope for more such crushing rejoinders.