10:03 AM | Lyle Denniston | Comments (0)
In a startling turn of events in the legal combat over the war on terrorism, the Supreme Court on Friday agreed to reconsider the appeals in the Guantanamo Bay detainee cases. It vacated its April 2 order denying review of the two packets of cases. The Court then granted review, consolidated the cases, and said they would be heard in a one-hour argument in the new Term starting Oct. 1. Such a switch by the Court has not occurred since at least 1968 (Kolod v. U.S., 390 U.S. 136), according to Court sources.
The order also said that new briefs will be sought, after the D.C. Circuit rules in pending cases on how judicial review is to work for detainees under the Detainee Treatment Act of 2005.
Under the Court's Rules and precedents, it would have taken the votes of five Justices to grant rehearing, compared with the requirement of four votes to initially grant an appeal. When the Court denied review in April, only three Justices voted to hear the cases. But two of the other six, Justices John Paul Stevens and Anthony M. Kennedy, indicated they wanted the detainees to first attempt to get legal relief in the D.C. Circuit. Under the Detainee Treatment Act of 2005, the Circuit Court has the authority to provide limited review of military decisions to continue holding Guantanamo prisoners as "enemy combatants."
Friday's order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing. Under the Court's rules, a rehearing is granted only if there has been a change in "intervening circumstances of a substantial or controlling effect" or if counsel can cite "substantial grounds not previously presented."
The new order did not state what changes had come about. The detainees' lawyers, in their rehearing petition, had said that the unfolding of the review process in the D.C. Circuit Court