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The U.S. Supreme Court appeared deeply divided last week over just how much due process Guant�namo Bay detainees deserve in challenging their imprisonment � and how much they already have. Boumediene v. Bush, No. 06-1195, and Al Odah v. U.S., No. 06-1196. Twice before, related issues have come before the high court, and twice the court ruled in favor of the detainees. But that trend seemed in jeopardy last week, as justices weighed the impact of a law passed by Congress last year that stripped U.S. courts of jurisdiction to hear habeas corpus appeals from detainees and established a limited appeal process. “The political branch has spoken,” declared Solicitor General Paul Clement, who argued that the appeals process spelled out by Congress in the Military Commissions Act of 2006 gives detainees substantial appeal rights that amount to a “remarkable liberalization of the writ” of habeas corpus, not a retrenchment. But former Solicitor General Seth Waxman, representing 37 Guant�namo Bay, Cuba, detainees, argued forcefully that in the nearly six years they have been confined, the detainees have never been able to challenge their detentions before a neutral decision-maker. Waxman’s chief nemesis was Justice Antonin Scalia, who repeatedly challenged him to name a single case in U.S. or British legal history in which a foreign alien imprisoned outside a nation’s sovereign territory had been given habeas rights. Waxman said the court had already decided in Rasul v. Bush, 542 U.S. 466 (2004), that Guant�namo was effectively under U.S. control. He insisted that, in fact, the federal government had more power over the detainees in Guant�namo, which is under U.S. military control under an agreement with Cuba, than it would if they were in prison in Kentucky, where state sovereignty could come into play. Clement’s chief needler was Justice David H. Souter, who persisted in questioning Clement’s claim that the new review process, which can go as far as the U.S. Circuit Court of Appeals for the District of Columbia, is constitutionally adequate. When Clement noted that each detainee is entitled to a personal representative � not necessarily a lawyer � during a status-review process, Souter countered that this representative is required to report back to the military anything that might be unfavorable to the person he is representing. “He’s not in the position of counsel as we understand the term,” said Souter, who proceeded to challenge Clement on most of his other points. In the process, Clement sought to reassure the justices that, on review, a detainee could challenge many aspects of the detention and even win release. Some of his concessions seemed to go beyond what the government had previously said could be part of the detainees’ review process. Justice Anthony M. Kennedy, the presumed swing vote in the cases, was unusually quiet. When Justice Ruth Bader Ginsburg flatteringly quoted Kennedy as ruling that Guant�namo was “in every practical respect” U.S. territory, Kennedy seemed to scowl. Kennedy tipped his hand only once. It came when Clement, pressed by Justice Stephen G. Breyer, said the high court could, in deciding the case his way, nonetheless tell lower courts to expedite review in light of the detainees’ already lengthy detention at Guant�namo. “How can we fit your position when we have no jurisdiction here?” Kennedy interjected, referring to the law’s exclusion of the federal courts from habeas review. Seemingly picking up on Kennedy’s skepticism, Waxman, a partner at Wilmer Cutler Pickering Hale and Dorr, rose for an impassioned rebuttal that put the issues in personal terms. Waxman told the justices about Murat Kornaz, a German resident and Guant�namo detainee who was released in 2006 after years of unsuccessful efforts to prove that he had no relationship to terrorists. Kornaz was able to win his freedom only because he had a lawyer � which the new appeals process does not guarantee � and because he was able to obtain information about the charges against him and then prove the information was false. Those opportunities would not be available to detainees under the appeals process envisioned by Congress, Waxman said. The justices issued two opinions on Dec. 4: • TAXATION The justices ruled unanimously that railroads may challenge state methods for determining the value of their property, a decision that could lower some railroad tax bills. CSX Transportation Inc. v. Georgia State Board of Equalization, No. 06-1287. The court sided with CSX Transportation Inc. in a case from Georgia in which the railroad argued that the state improperly instituted a new way of calculating its property tax that resulted in a nearly 50% increase in its tax bill from one year to the next. The court reversed a ruling from the 11th Circuit that prohibited the railroad, a subsidiary of CSX Corp., from challenging the method the state used to determine the value of the railroad’s property. A federal law bars states from discriminating against railroads by taxing their property more heavily than other commercial property. Chief Justice John G. Roberts Jr. said the law allows a railroad to go to court to try to show that the state’s way of calculating market value is unfair. • CRIMINAL PRACTICE The justices unanimously upheld a stiff prison term for a repeat offender who argued that some earlier convictions shouldn’t count in calculating his sentence. Logan v. U.S., No. 06-6911. The ruling in the case of James Logan of Wisconsin is the latest effort by the court to clarify the Armed Career Criminal Act, most recently amended in 2004. The law allows longer sentences for “career criminals.” Logan pleaded guilty to possessing a gun after having been convicted of a felony. Federal law bars felons from having guns. He received a term of 15 years because he also had three prior misdemeanor convictions in Wisconsin, punishable by up to three years in prison. The Armed Career Criminal Act makes defendants eligible for longer prison terms if they have three prior criminal convictions for crimes that are either violent felonies or serious drug offenses. Misdemeanors also qualify if they have maximum prison terms of more than two years. Logan argued the misdemeanors should not have been considered because the law also says those convictions shouldn’t count when an individual has his civil rights, which normally include the right to vote, restored. In Wisconsin, misdemeanors do not result in the loss of civil rights, so Logan argued the convictions shouldn’t be counted. The court, however, was unpersuaded. “We hold that the words ‘civil rights restored’ do not cover the case of an offender who lost no civil rights,” Justice Ruth Bader Ginsburg said.

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