My FindLaw column later this week recaps the DC Circuit opinion upholding the Military Commissions Act insofar as it eliminates habeas jurisdiction for enemy aliens outside the U.S. As I'll explain there, it is difficult to justify the assumpton in Judge Randolph's opinion that the constitutionally required scope of habeas is no greater than what it was in 1789. Here I'll just make one quick observation about pace.
The Bush administration first began detaining enemy combatants from the Afghanistan war in late 2001. Unless the latest case is expedited, it won't be heard by the Supreme Court until next Term, meaning a decision as late as June 2008. That will be the third time the U.S. Supreme Court will have heard a case challenging procedures for detaining alleged alien enemy combatants. And if the Court reverses the DC Circuit, that will undoubtedly give rise to further wrangling among Congress, the administration and the courts over what procedures are permissible. A policy of indefinite detention appears to be succeeding through infinite litigation.