Wednesday, November 15, 2006

Giving Aid and Comfort to ... Injustice is the Enemy

It is the rare generation that is given, and then seizes, the opportunity to make history. Not since WWII and the internment of Japanese-Americans and trials of German POWs have the courts had to become so actively engaged in prisoner litigation. Yes, of course, you have the “run of the mine” habeas corpus cases and lots of them perennially, but the recent so-called “terrorism cases” have become the hot potato for judicial review on a broad scale, involving questions of jurisdiction, federalism, separation of powers and Executive prerogative, in conjunction with American and enlightened notions of fundamental civil liberties. After a long swing of the pendulum toward "get tough on crime" (aka "lock'em up and throw away the key), perhaps a throughgoing review of this (including torture and abuse in our prison and criminal justice system) has been long overdue. We, Americans, as well as our bretheren overseas, confront a world that our parents and grandparents could never have dreamed up.

SCOTUSblog has this update:
Since the Supreme Court's decision in Hamdi v. Rumsfeld on June 28, 2004, a question has lingered over the President's authority to hold war-on-terrorism detainees who are captured inside the U.S., not in a foreign battle zone. The issue did not get finally resolved in the highly visible case of Jose Padilla because the government shifted him to a criminal trial court before the Supreme Court could rule. It is now unfolding in the Fourth Circuit Court, in the case of Al-Marri v. Wright (Circuit docket 06-7427). But, on Monday, the Justice Department sought to turn that case into another test of Congress' power to strip the federal courts of authority to hear habeas challenges to detention, even as Al-Marri's lawyers filed their opening brief on the merits (brief can be found here).
the Justice Department, in a filing also submitted on Monday, argued that the Fourth Circuit no longer has any authority to decide Al-Marri's case, because it is a habeas challenge and Congress in the new Military Commissions Act of 2006 stripped the federal courts of all authority to rule on detainees' habeas cases. The case thus should be dismissed, the government argued in the filing, found here. The Department said that the two sides had agreed on a briefing schedule on this motion, with Al-Marri's response due Jan. 5 and the government's reply Jan. 17. (The Circuit Court has tentatively set the week of Jan. 31-Feb. 3 to hear the case.)

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