The Tie That Might UnBind

Salim Ahmed Hamdan has smart lawyers.

Guantanamo Detainee Asks Supreme Court to Intervene: Attorneys for a detainee at the U.S. military prison in Guantanamo Bay, Cuba, have asked the Supreme Court for emergency intervention to settle the legality of the military commissions set up by the Pentagon to prosecute hundreds of the alleged al Qaeda and Taliban fighters.

Lawyers representing a Yemeni detainee accused of serving as Osama bin Laden's bodyguard, joined by former military justice lawyers, argued that they be allowed to skip the appellate stage of their case and have the Supreme Court make a decision now. They say waiting while the case wends its way through the judicial process will leave the government's commission process in limbo and prolong the imprisonment of detainees, some of whom have been held at the U.S. military prison for nearly three years.

A federal judge ruled on Nov. 8 that the special military trials, revived by the Pentagon after the Sept. 11, 2001, terrorist attacks, are illegal and cannot continue. He agreed with Hamdan's lawyers that the detainees — considered “enemy combatants,” not prisoners of war, by the Bush administration — were not receiving fair legal treatment under the commissions process and had no effective ability to challenge the accusations against them.

Not to mention that Chief Justice Rehnquist may not be able to sit on the case now due to ill health, but may be well (or replaced) later. And a tie vote upholds the lower court decision. And the District Court ruled for Hamdan. And who knows if maybe the Court of Appeals might go the other way, shifting the effect of a hung court…

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