Washington, D.C. (Rightcommentary.com): As the 2007-2008 term winds down, two cases that I’m waiting for are likely to be released within the next three weeks. Well actually its three cases, but the first two cases deal with the same issue - detainee habeas “rights”. The third case, of course, is the “gun rights” case for DC resident.

The detainee cases of Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196, have yet to be announced. A central issue in those cases is whether, in moving to cast aside broad habeas review for the detainees, Congress provided an adequate substitute in enacting the Detainee Treatment Act of 2005.

This case is interesting because the Supreme Court originally decided not to hear either case - then in an usual move - decided last June to grant the writ of certiorari. Under the Supreme Court’s rules, five justices must vote to allow a rehearing of a petition. Only four votes are needed to initially grant a petition for certiorari, but only three justices - Justices Breyer, Ginsburg and Souter would have allowed the cases to proceed when the Court first considered the issue in April. Speculation is that Justices Kennedy and Stevens reversed their previous decision not to hear the cases and voted in favor of a rehearing.

At stake in these two cases are really three key arguments:

1. Was the change of habeas corpus jurisdiction by the Congress through the passage of the Military Commissions Act (MCA) lawful?
2. Do the detainees at Guantanamo Bay have a “Constitutional” right of habeas separate from any right of habeas that they may have had (or no longer have) under the MCA? This is essentially an argument that the “Suspension Clause” of the Constitution was not invoked, and thus, habeas corpus applies as a matter of Constitutional law to any territory over which the United States occupies plenary authority.
3. Is the detention of the enemy combatants in this particular set of cases “unlawful” and therefore, subject to a relief of granting of the writ of habeas corpus (in other words - should the court set them free).

This case has the potential to fundamentally change detention in the war on terrorism. Should the Court decide that the MCA was unlawful, that the detainees at Guantanamo do have a Constitutional right to a habeas review, and that that Constitutional right extends to Guantanamo - it will change how the United States views the legal rights of aliens and enemy combatants. Essentially the ruling would suggest that the rights of those in the custody of the US applies anywhere the US exercises sovereign authority. There would be significant potential implications of such a ruling for Iraq detention as well - as those detainees would undoubtedly seek to have a writ of habeas apply to them as well. While I think that case is much more tenuous - it opens the door.

I believe that undoubtedly the Court will rule that for the detainee who is currently held in Charleston, North Carolina - he will have a writ of habeas corpus. I believe that the Court will find that Congress cannot modify habeas to suspend it without following the procedures of the “Suspension Clause”. Since Congress has not declared a state of invasion or rebellion - it is likely that a the minimum, the detainee held on US soil will be entitled to a habeas review of his detention.

Let me be clear about one thing, however, and that is that a right of review does not mean he’ll be released. The purpose of habeas is to provide the Judiciary with the ability to review the detention of a prisoner (or in this case a combatant) consistent with the authority to make such a detention. In the case of prisoners - that review is usually based on an assessment if the incarcerated received a fair trial. In the case of detainees - the case would undoubtedly hang on the factual basis for a detention under the Authorization to Use Military Force (AUMF) in the Global War on Terrorism. If in fact the detainee is a member of al Qaida, the Taliban, or their supporters - then their detention is indisputably lawful - and the Court has already ruled that the President has the authority to detain enemy combatants in the war on terrorism.

From the Scotus Wiki:

While the two cases are weighty with significance, they also are limited in significant ways: they involve foreign nationals only, not U.S. citizens; they involve individuals taken captive overseas, not in the U.S.; they involve persons held outside mainland U.S., not in custody anywhere inside this country; they involve individuals none of whom faces any criminal charges, in civilian or military courts. Although the decision in Boumediene/Al Odah may well have an effect later on U.S. citizens, permanent resident aliens, individuals held elsewhere than at Guantanamo, and prisoners facing trial before military commissions, their fate is not directly at issue now. The Court, for example, has expressly declined - so far - to rule on challenges by military commission defendants Salim Ahmed Hamdan and Omar Ahmed Khadr.

The granted cases involve 37 Guantanamo detainees. The individuals who give their names to the cases are Lakhdar Boumediene, a native of Algeria captured in Bosnia in October 2001, and Khalid Abdullah Fahad Al Odah, a Kuwaiti national captured in Afghanistan in late 2001. Those two are among hundreds of detainees who have filed challenges in U.S. federal courts in Washington to their detention, seeking writs of habeas corpus to force the government to justify their captivity and hoping to achieve their release after more than five years in military prison. Although Guantanamo at one point held more than 700 prisoners (and a total of nearly 900 have been there at some time), the detainee population there is now down to about 305. There have been recurrent reports that the Bush Administration is studying whether to close Guantanamo altogether, but that does not appear to be imminent.

No Guantanamo detainee has ever won release in a court case because of the simple fact that not one has yet had a hearing to judge their habeas claim. Federal judges initially threw out the cases, finding no jurisdiction. But the Supreme Court found on June 28, 2004, in Rasul v. Bush and Al Odah v. U.S. (Al Odah is the same individual as in the new case), that detainees had a right under federal statutory law to file habeas challenges. The Court sent the cases back to lower courts to decide initially whether to grant any remedy.

In two District Court decisions within days of each other in January 2005, the judges reached opposite conclusions - one holding in the Boumediene case that the courts could not give detainees any remedy, the other holding in the Al Odah case that the detainees could claim a due process violation in their continued detention. The judge in the Al Odah case ruled that a system of military-only review of detainees’ status - set up by the Pentagon in July 2004 in direct response to the Supreme Court rulings in Rasul and Al Odah (the Combatant Status Review Tribunal system) — was a violation of due process rights.

The cases went up to the D.C. Circuit Court. While those appeals were pending, Congress passed the Detainee Treatment Act of 2005, stripping the federal courts of authority to hear habeas challenges by detainees. That law was tested in the federal courts, and ultimately in the Supreme Court, resulting in the ruling by the Justices on Hamdan v. Rumsfeld on June 29, 2006, that the court-stripping provision of the DTA did not apply to already-pending detainee habeas cases. That led Congress to try again, enacting the Military Commissions Act of 2006, with a more explicit withdrawal of habeas authority in the federal courts in any detainee case.

Finally, after nearly two years of intermittent activity in the D.C. Circuit Court, that Court on Feb. 20, 2007, upheld the Military Commission Act’s court-stripping provisions, and ruled that the detainees who had no “property or presence within the United States” had no constitutional rights whatsoever. It ordered the Boumediene and Al’Odah cases dismissed. The only court process left for detainees, the Circuit Court ruled, was an appeal to the Circuit Court for limited review of the detention findings of the military Combatant Status Review Tribunals, appeal rights that were authorized by the Detainee Treatment Act of 2005.

This case will undoubtedly be talked about considerably when it is finally announced. My sources tell me that the decision might be imminent - tomorrow or Wednesday - alternatively, because of the decision to remove the Military Judge in the Kahdr case last Friday - the decision might be delayed a week. Therefore, look for it either tomorrow or Wednesday or next Monday through Wednesday…

The second case deals with - aptly enough - the Second Amendment. The city of Washington’s appeal (District of Columbia v. Heller, 07-290) seeking to revive its flat ban on private possession of handguns. I’ve already blogged on this case - but a brief rehashing is probably in order…

The Justices chose to write out for themselves the constitutional question they will undertake to answer in Heller. Both sides had urged the Court to hear the city’s case, but they had disagreed over how to frame the Second Amendment issue.

Here is the way the Court phrased the granted issue:

“Whether the following provisions - D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 - violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

The first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.

These regulations are at best onerous - and the way they function in reality is to make it impossible for private ownership of weapons in the District of Columbia.

Again, from SCOTUS Wiki:

The Supreme Court’s historic argument Tuesday on the meaning of the Constitution’s Second Amendment sent out one quite clear signal: individuals may well wind up with a genuine right to have a gun for self-defense in their home. But what was not similarly clear in the hearing on District of Columbia v. Heller (07-290) was what kind of gun that would entail, and thus what kind of limitations government could put on access or use of a weapon. In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs - the 1939 decision in U.S. v. Miller - “may be deficient” in that respect. “Why does any of that have any real relevance to the situation that faces the homeowner today?” Kennedy asked rhetorically.

With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him - once more - the holder of the deciding vote. There also remained a chance, it appeared, that Justice Stephen G. Breyer, one of the Court’s moderates, would be willing to support an individual right to have a gun - provided that a ruling left considerable room for government regulation of weapons, particularly in urban areas with high crime rates.

One of the most important aspects of the 98-minute hearing was the steadfast commitment that the federal government’s lawyer, Solicitor General Paul D. Clement, held to the position he had expressed in a brief that has come under heavy fire from inside the White House and from a wide swath of the gun-owning community. Clement had written that, while there should be an individual, private right to have a gun in one’s home, it should be subject to regulation by government that would not have to meet the strictest constitutional test. At the podium, he several times repeated his criticism of the D.C. Circuit Court for raising a higher constitutional bar to gun regulation - even though his critics (including Vice President Cheney) passionately support exactly what the Circuit Court did in striking down the District of Columbia’s 1976 ban on any private ownership or use of handguns.

If the Court were ultimately to rule that the Second Amendment’s promise of a “right to keep and bear arms” embraces a personal, individual right of self-defense at least in one’s home, it might also have to address what, if any, limits government might put on that right, and what constitutional standard to use in judging whether a particular law’s limitations would be valid. Thus, it was no surprise that many of the exchanges on Tuesday dwelled on both of those issues, with no sign of anything close to a consensus on the answers.

The Chief Justice, signaling that he would like to pare down the task the Court faces in deciding the case, told the Solicitor General: “I wonder why in this case we have to articulate an all-encompassing standard. Isn’t it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can’t take the gun to the marketplace and all that, and determine who…this restriction and the scope of this right looks in relation to those? I’m not sure why we have to articulate some very intricate standard.”

Clement said it “would be an improvement over the court of appeals” if the Court were to decide the case “very narrowly.” Again, as in his written brief, Clement voiced concern that the Circuit Court ruling might be understood to give individuals a right to have even a machinegun.

The Chief Justice, focusing on what he called the “absolute ban” in the District’s law, countered that the city was not restricting machineguns so “why would you think the opinion striking down an absolute ban would also apply to a narrow one…directly solely to machine guns?” The Solicitor General countered that the government needed to worry about the implication of a strict Second Amendment limit on the gun right because of the possible changes in gun technology in the future, bringing new weapons under the Amendment’s protection.

Because the current members of the Court had never taken part in a case testing the scope of the right laid out in the Second Amendment, it was not clear, going into the argument, where any of them (with the possible exception of Justices Scalia and Thomas) would stand on the question. But the Chief Justice, Justice Kennedy and Justice Scalia moved in, in the very earliest stages of the argument, to lay out clear positions - at least on the collective vs. individual rights dispute.

Within seconds after the defender of the District law, Washington lawyer Walter Dellinger, laid out his general theory that the Amendment only guaranteed a “militia-related” right, the Chief Justice focused on the text of the Amendment and said “If it is limited to state militias, why would they say ‘the right of the people. In other words, why wouldn’t they say ’state militias have the right to keep arms.’”

Kennedy soon joined in, saying the reference in the Amendment to the arms needs of the militia was simply a reaffirmation of the importance of having a militia (as guaranteed by other provisions in the Constitution), but then the Framers went further an added an entirely separate right, “a right to bear arms.” Scalia shortly got involved, saying “why isn’t it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past…by taking away the people’s weapons…the two clauses go together beautifully: Since we need a militia, the right to keep and bear arms shall not be infringed.”

As the hearing moved on, it became more apparent that the kind of right Kennedy was supporting was one keyed entirely to the home, and its defense against intruders - beginning with people in the Founding era who lived in the wilderness, and had to fend off, say, Indians. He referred to “the remote settler” seeking to “defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?” And it also became clear that, in modern times, with high crime rates, individuals in their homes needed a dependable means of defense against urban intruders.

It took a little more time for Justice Alito to take part in the exchanges. When he did, he definitely seemed on the individual rights side of the debate. In fact, when Clement was at the podium, Alito commented: “How could the District code provision survive any standard of review whee they totally ban the possession of the type of weapon that’s most commonly used for self-defense…?”

The ideological dividing line among the Justices that is often apparent in major constitutional cases reemerged in this one. Dellinger, in defending the city’s version of the Amendment’s meaning, had to fend off tough and sometimes hostile questions from the conservatives, while the lawyer speaking for the challengers - Alexandria VA attorney Alan Gura - was met with sometimes aggressive questioning from the liberals and moderates.

Justice John Paul Stevens, the leader of the moderate/liberal bloc, repeatedly returned to the notion that, at the time the Second Amendment was written in the Founding era, only two states’ constitutions embraced an individual right to have a gun for self-defense. The other members of that bloc, including Justice Breyer, spent much of their time pressing for clarity on whether a ban on handguns would actually interfere with a right of self-defense, since they suggested - as does the city government - that the city has no objection to maintaining a useable rifle or shotgun within the home. But Gura regularly countered that argument with his interpretation that, aside from the handgun ban, the District law’s requirements of disassembly or locked triggers on rifles and shotguns in the home would deprive the residents of having any functional firearm.

Gura, as he went along, made some concessions that seemed less than supportive of his basic argument. He got into a difficult exchange with Justice Stevens, for example, over his agreement that the militia language in the Second Amendment did have some role to play in defining the right. As soon as he offered that agreement, the Chief Justice pounced, suggesting that it would limit gun rights of people who had nothing to do with the military but who may have a need for a gun. Justice Kennedy came to Gura’s rescue, suggesting that the militia language was put there simply to reaffirm the Constitution’s allocation elsewhere of power over the militia.

And Kennedy moved in to nail down his basic view of the Amendment, saying to Gura: “I want to know whether or not, in your view,the operative clause of he amendment protects, was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns?” Gura readily replied: “Oh, yes.”

Breyer also made use of Gura’s time at the podium to shore up the Justice’s apparent embrace of the concept that, if there is a personal right, it should be subjected to “reasonable regulation.” A ban on handguns, Breyer indicated, might meet that test, if an individual had a right to use other weapons.

Justices Ruth Bader Ginsburg and David H. Souter, while less active than their colleagues, were quite clearly on the District of Columbia’s side.

The argument, taken as a whole, revealed a Court ready - perhaps somewhat eager - to confront and decide the core question of the Second Amendment’s meaning. No one on the Court seemed interested in the District of Columbia’s backuip argument - that the Second Amendment simply does not apply to the District as the federal capital city. There also was no interest in an issue that is only implicitly involved: whether, if there is an individual right, it would be applied to state and local governments, too, through incorporation into the Fourteenth Amendment’s protection of due process against state action.

My little birdies have told me that this case is likely to be the “last bang” case that is announced to cap off the term. I suspect they are right.