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Section 9: Looking Ahead Institute of Bill of Rights Law at the William & Mary Law School College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 2005 Section 9: Looking Ahead Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 9: Looking Ahead" (2005). Supreme Court Preview. 171. https://scholarship.law.wm.edu/preview/171 Copyright c 2005 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview IX. LOOKING AHEAD In This Section: War on Terror: Part I: Guantanamo Bay "U.S Stymies Detainee Access Despite Ruling, Lawyers Say" Carol Leonnig p. 579 "Guantanamo Trial Is Ruled Unlawful" John Hendren p. 582 "Gonzales & the War" Andrew McCarthy p. 585 "Ruling Lets U.S. Restart Trials at Guantanamo" Neil A. Lewis p. 588 Part II: Hamdi and Padilla "Bush's Good Day in Court" David B. Rivkin Jr. and Lee A. Casey p. 590 "U.S., Bowing to Court Ruling, Will Free 'Enemy Combatant"' Eric Lichtblau p. 592 "Logic of Supreme Court's Decisions Says that Alleged 'Dirty Bomber' Must Be Charged or Freed" Robert A. Levy p. 594 "Judge Rules Terror Suspect Must Be Charged or Freed" Richard A. Serrano p. 598 "U.S. May Still Charge 'Enemy Combatant,' Gonzales Says" Richard B. Schmitt p. 601 "Padillas's Case Returns to Supreme Court" Bethany Broida p. 603 "Appeal of Detained Terrorism Suspect to Be Heard Today" Jerry Markon p. 605 576 Defense of Marriage Act "Judge Calls Defense of Marriage Act Legally Sound" Bob Egelko p. 608 "Backing Two-Sex Marriage Is Upheld by Federal Judge" Adam Liptak p. 610 "Supreme Court Paved Way for Marriage Ruling with Sodomy Law Decision" Linda Greenhouse p. 612 "States' Recognition of Same-Sex Union May Be Tested" Charles Lane p. 614 "Bush Has the Wrong Remedy to Court-Imposed Gay Marriage" Stuart Taylor, Jr. p. 616 "Vote on Defense of Marriage Act Provision Treads Tricky Legal Ground in Limiting Courts' Jurisdiction" Seth Stern p. 619 Partial Birth Abortion "'Partial-Birth' Abortion Case Advances" Lyle Denniston p. 621 "The Next Abortion Case?" Lyle Denniston p. 623 "Federal Ban on Partial Birth Abortion: Court Rules that Governments Can't Outlaw Type of Abortion" Linda Greenhouse p. 625 "Senate Passes Ban on Abortion Procedure" Helen DeWar p. 628 "Next on Abortion: Supreme Collision" Simon Lazarus p. 630 "U.S. Judges in San Francisco Strikes Down Federal Law Banning Form of Abortion" Adam Liptak p. 633 "U.S. Court in New York Rejects Partial-Birth Abortion Ban" Julia Preston p. 636 577 "Partial Birth is First Hurdle" Jay Sekulow p. 6 3 8 Affirmative Action "Judges Back Jefferson Desegregation Plan" Chris Kenning p. 640 "Jefferson Suit is Expected to Proceed" Chris Kenning p. 642 "Court Backs Lynn Use of Race in School Plan" Shelley Murphy and Maria Sacchetti p. 644 "Judge OK's Use of Race in School Assigning" Thanassis Cambanis p. 647 "A World Without Color; Segregation Deprives White Children Too" Howard Manly p. 650 Felon Voting Rights "Supreme Court Declines to Hear Two Cases Weighing the Right of Felons to Vote" Linda Greenhouse p. 652 " Ith Circuit Upholds Ban on Felon Voting" Dan Christensen p. 654 "Disenfranchised Without Recourse?" Gary Young p. 656 "Felony Disenfranchisement in the United States" The Sentencing Project p. 658 "Once a Felon, Never a Voter?" Megan Twohey p. 661 "Perps and Politics" Roger Clegg p. 665 "Re-Enfranchising Felons" Shawn Macomber p. 667 578 "U.S. Stymies Detainee Access Despite Ruling, Lawyers Say" Washington Post October 14, 2004 Carol Leonnig More than three months after the Supreme the same arguments made by government Court declared that hundreds of detainees at lawyers in their losing case before the the military prison at Guantanamo Bay, Supreme Court. Cuba, have the right to challenge their imprisonment in U.S. courts, none has "The government says it's very complicated, appeared in a courtroom. they need security clearance issues worked out, et cetera, et cetera," said Don Rehkopf, Of the 68 alleged al Qaeda and Taliban a military law expert with the National fighters who have so far petitioned for Association of Criminal Defense Lawyers access to federal court in Washington, only a and the attorney who helped get espionage handful have even spoken to their lawyers. charges against a serviceman at Guantanamo With some held for nearly three years on the Bay dismissed. "That's garbage. The U.S. Navy base, the detainees remain largely government is coming up with more and precluded from receiving legal help because more excuses, and changing the rules on a of protracted negotiations with the Justice daily basis." Department over lawyers' security clearances, the government's insistence on Justice Department attorney Terry Henry monitoring attorney-client conversations and yesterday told a federal judge overseeing the the number of visits lawyers will be allowed, cases that the government has worked to be defense attorneys told a U.S. District Court "reasonable and fair." judge yesterday. "We think we're making extraordinary Less than half the detainees with lawyers strides to have these folks have their day in have been given the government's reason for court," Henry said. holding them; the government has broken a court-ordered Sept. 30 deadline to justify The Supreme Court ruled June 28 that most of those detentions, the lawyers said. foreign nationals held at a U.S. military For the 28 detainees who have been prison had some of the same rights as U.S. informed, the reason is typically that a citizens imprisoned on other charges: to file recent military review-conducted without a habeas petition and demand that the an attorney or witnesses-has concluded government justify the reason for detaining that they are enemy combatants with links to them. the Taliban or al Qaeda. In habeas cases, legal scholars and criminal The Justice Department, when ordered this defense lawyers said, a person who petitions month by a federal judge to formally the court for this information typically respond to detainees' basic complaint that receives an answer within 30 days or is they are being unfairly imprisoned, filed a released. 96-page pleading asking the judge to dismiss the case. The document contained some of Yet that fairly mundane legal step, 579 conducted hundreds of times every day in understand why some apparently dangerous courthouses around the country, has been detainees have been released while others transformed-against the backdrop of a war who have not shown evidence of violence on terrorism and a presidential campaign have not been set free. A former detainee focused on the administration's handling of who was recently released from that war-into a conflict that legal scholars Guantanamo Bay is now believed to be the call unprecedented. leader of a militant band that kidnapped two Chinese engineers in a lawless region of "It's definitely ugly," said Douglas W. Pakistan near the Afghanistan border, Kmiec, a professor of constitutional law at according to Pakistani officials. Pepperdine University Law School and a Justice Department official in the Reagan Experts in military law and habeas cases and George H.W. Bush administrations. said the obstacles in the Guantanamo Bay "But it seems like the time we live in. It is detainee cases stem from three main simultaneously outrageous if it's a time of complications. Most notably, the lawyers do peace and totally reasonable if it's a time of not have access to their clients, particularly war." in the new, closed military hearings the government inaugurated after the Supreme Hearing the cases is a retired senior judge, Court decision to determine whether U.S. District Judge Joyce Hens Green, who individuals should continue to be classified is long on expertise in national security as enemy combatants and detained. The cases but short on time, staff or a clear plaintiffs do not have the information to mandate on how to handle them. make their case to the tribunal, which gives the government a lopsided advantage. Tom Wilner, an attorney who represents 12 Kuwaitis and who brought the case that led "When the detainees are denied meaningful to the Supreme Court decision, complained access to counsel, the adversarial process is to Green yesterday that the government has lost," said David P. Sheldon, a military law stonewalled, violated her orders and is now expert. in contempt of the nation's highest court. In a letter to Green last month, the detainee The U.S. District Court also stumbled for lawyers said that efforts to represent their several weeks in deciding whether one judge clients had hit a roadblock since she was would oversee the cases or whether some appointed. matters should be left to individual judges who initially presided over separate cases. "Why is it after three years, they can't say At least three times, judges have decided not why they are holding these people?" Wilner to rule on motions filed by lawyers in the asked yesterday. "We've had people rotting detainee cases, saying they were deferring to in prison, so we don't need any more delay. the coordinating judge, and thus causing . The Supreme Court has spoken. Nothing additional delay. has happened yet." Some lawyers also lacked needed security Green disagreed. "I beg your pardon," she clearances or expertise in military and said. "Things have happened." habeas law, and some only recently began to apply to visit the base. "We're working as Detainee lawyers said they cannot fast as we can, given the circumstances," 580 Justice Department spokesman Mark Kmiec said the decision was not so clear and Corallo said.
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