Supreme Court Appears Focused on Gitmo Remedies
At the close of oral arguments yesterday, it appeared likely that the U.S. Supreme Court will send the appeal by Guantanamo detainees back to an appeals court along with a “road map” of ways to expand procedural protections for their trials, the New York Times concludes.
The details of the court’s road-map decision will likely depend on Justice Anthony M. Kennedy, considered the swing vote in the case, the Times report says.
The court is considering whether the detainees have a constitutional right to challenge their confinement through federal habeas actions, and if so, whether the military commissions created to hear the cases are an adequate substitute.
Most of the justices appear ready to agree the detainees have some constitutional protections, the Times says. But they seem more divided on the issues of how much due process they deserve and how much they already have, according to Legal Times.
Both the New York Times and SCOTUSblog noted that Solicitor General Paul Clement quickly jumped from an argument that the detainees were adequately protected by military commission trials to consideration of possible remedies if the trials proved inadequate. As Clement’s argument “failed to gain traction, he rather remarkably began throwing pieces of it over the side,” the Times says.
Clement even suggested for the first time on the government’s behalf that the appeals court could order the release of a Guantanamo detainee as a remedy.
