JAG and Judicial Review for the Guantanamo Bay Detainees
Professor Muller blogs a law.com article which discusses the Guantanamo Bay military commission cases and the enemy combatant cases. The article reveals that some "uniformed military defense lawyers in the Pentagon's Office of Military Commissions are preparing an amicus brief in the Guantanamo habeas case supporting detainees who are seeking federal court review of their detentions . . . ." Professor Muller wonders how the military officers can do this when they are supposed to owe their loyalty to the Commander-in-Chief (the President), and they seem to be taking a position contrary to that the Justice Department is taking.
What the article does not seem to reveal is what kind of judicial review the officers will be arguing the Court should have with respect to the Guantanamo detainees. Should the Court have the ability to review the merits of the case, or just whether the military commission had jurisdiction in the first case. Johnson v. Eisentrager seems to indicate that the latter is the type of review currently employed by the Supreme Court with respect to military commissions. A problem with the military commissions is that the Nov. 13, 2001 Military Order from President Bush (pretty much copied from the 1942 Order from President Roosevelt in Quirin) has a clause in it that basically suspends that writ of habeas corpus for anyone tried by military commissions. If the officers are contending that that specific clause in the Military Order should not be followed, they would not really be taking a position contrary to the administration since White House Counsel Alberto Gonzales has basically admitted that the clause is not enforceable. If, however, the military officers are arguing that the Supreme Court has the power to review the military commission trials on the merits, that would be a shocking departure from the current position of the Justice Department.
There is more to say on this, but I have two seminar papers, an exam, and a primary edit of a law review article that have to go out by the 17th (though at least my Secured Transactions exam is over). I front-loaded most of this year's work in the fall semester, and boy am I paying for it now. . .