Lyle Denniston at SCOTUSblog reports: The Supreme Court on Monday denied review in two new Guantanamo detainee cases. Three Justices dissented, and two others wrote separately about the denial. Had any combination of four of those Justices voted for review, of course, the cases would have been granted.
The action of the Court, although nowhere near to being a ruling on the actual issues involved, nevertheless was a sweeping victory for the Bush Administration, and put the fate of the detainees primarily in the hands of the U.S. military at Guantanamo Bay, Cuba, with only limited -- and later --- review in the civilian courts.
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The Court's denial of review of the two cases was not explained, as usual. But the two Justices who filed a separate "statement," John Paul Stevens and Anthony M. Kennedy, said that the Court had passed up review to avoid deciding constitutional issues before the detainees had used their "available remedies" under federal laws -- the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.
Those Justices warned, however, that if the government later is found to have engaged in "unreasonable" delay of those remedies, or caused "some other and ongoing injury," then "alternative means exist for us to consider our jurisdiction" over the detainees' allegations. They added that the Court's denial of review does not amount to an expression of "any opinion" on the merits of the detainee claims. Even so, the detainees' situation for some time to come will be governed solely by the DTA and the MCA, with no role for federal habeas courts.
Justice Stephen G. Breyer, joined by Justices David H. Souter and Ruth Bader Ginsburg, dissented from the denial. Breyer and Souter also said they would not only grant review, but expedite it. Marty Lederman at SCOTUSblog provides additional analysis.
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