The Hamdan case could not be more important, as it poses fundamental questions along three constitutional fronts: the division of power between the president and Congress; the rights of individuals to have their liberties protected by the courts; and the relationship between international human rights norms such as the Geneva Convention and United States domestic law.
Hamdan, who the government claims was Osama bin Laden’s personal driver and bodyguard, lost on all of these questions before the appeals court, but his arguments remain strong and directly relevant to the most pressing issues of national security and human rights.
The appeals court also rested its decision on an alternative theory that the 1949 Geneva Convention is not directly enforceable in U.S. courts. That aspect of the ruling, together with its acceptance of presidential “findings” that the Geneva Conventions do not apply to whole categories of detainees, prompted a friend-of-the-court brief from six retired Generals and Admirals, urging the Supreme Court to accept review. The brief states bluntly that “denying Geneva Convention protections to individuals seized in armed conflicts endangers American soldiers” in current and future armed conflicts.
So why does the Supreme Court keep forestalling a decision on whether to hear the Hamdan case? One disturbing possibility is that the justices have already voted to deny review, and are just giving one or more of their colleagues an opportunity to complete work on a dissent from that decision.
Or perhaps they are trying to figure out a way to resolve the underlying issues with a close to full bench. Chief Justice Roberts will likely recuse himself given his involvement in the case at the appeals court, and while Justice O’Connor can vote on petitions for review, by the time the decision comes down, she will likely have been replaced. It is not clear that the Senate will have confirmed her successor (whether it is Harriet Miers or someone else) in time for the new justice to participate.
Whatever the source of the delay, it would be a great shame for the court to deny review. In their public statements over the last five years, the justices in the majority in Bush v. Gore have dismissed the criticism that they unnecessarily reached out to decide that case. Given the stakes, they say, they could not leave the matter to a state court.
A monumentally bad Roberts decision that the Supreme Court must hear and overturn. Further I feel it is important for me to say the following, "Justice Roberts, your jurisprudence is wacky."