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It’s hard to string together a more dramatic scene than that which played out in the U.S. Supreme Court in December, when two men, rhetorical wunderkinds both, threw down over Guant�namo Bay detainees’ right to challenge their confinement in U.S. courts. “The political branch has spoken,” Solicitor General Paul Clement declared during oral arguments Dec. 5. His adversary, former Solicitor General Seth Waxman, ignored the implication, telling the Court that “the time for experimentation is over,” and argued for a process whereby detainees (there are roughly 300 of them in Guant�namo) could contest their confinement before a neutral decision-maker. Justice Anthony Kennedy, the putative swing vote, seemed neither impressed nor particularly pleased to be in the middle of things. The issue was at least as heavy as the rhetoric being peddled; this was, after all, the high court’s third review of the Bush administration’s policy for holding suspected terrorists. The Supreme Court had ruled for the detainees in the two previous cases, but this time the Bush administration had the heft of Congress behind its argument, in the form of the Military Commissions Act of 2006, which authorizes military commissions to try the detainees and strips federal courts of jurisdiction to hear their habeas corpus petitions. Of course, the Supreme Court’s ruling in the case, Boumediene v. Bush, will be a story for 2008. But in 2007, Boumediene threw the federal courts into tilt, with judges on the benches of the U.S. Court of Appeals for the D.C. Circuit and the U.S. District Court for the District of Columbia engaged in the messy business of divining the Supreme Court’s intentions. After the D.C. Circuit ruled in February that detainees were barred from habeas relief, the Supreme Court declined to intervene. But in an unprecedented order in June, the high court reconsidered. The lower courts are still trying to figure out what it all means. Come summer, they’ll know.
Joe Palazzolo can be contacted at [email protected].

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