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Arguments last week before the U.S. Court of Appeals for the D.C. Circuit in two cases brought by military prisoners at Guant�namo Bay took an unexpected turn that visibly surprised courtroom observers. Government lawyer Gregory Katsas took to the podium on Sept. 8 with confidence — after all, Judge A. Raymond Randolph wrote the court’s July 2005 opinion in Hamdan v. Rumsfeld, which upheld the president’s authority to try suspected terrorists before military commissions. But Randolph, joined by panel member Judge David Sentelle, who in a 2003 decision affirmed the government’s authority to keep secret basic information concerning hundreds of foreigners detained after the Sept. 11 attacks, rigorously grilled Katsas. Randolph in particular scrutinized Katsas’ assertion that the court should defer to determinations about the detainees made by military panels convened at Guant�namo Bay, telling the lawyer: “Nothing in the statute requires deference to a military tribunal.” Randolph probed the possibility that Guant�namo Bay detainees have a right under the federal habeas corpus statute to have the facts of their cases considered by a federal court. A day later, in another detainee case, a federal appeals court gave the Bush administration a firm win. The president has the power to detain Jose Padilla, a U.S. citizen who has been held in a South Carolina military brig for more than three years, without charges as a suspected enemy combatant, Judge J. Michael Luttig wrote for a panel of three judges on the U.S. Court of Appeals for the 4th Circuit.
Vanessa Blum can be contacted at [email protected]. Lily Henning can be contacted at [email protected].

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