Tenets of freedom remain metaphorically in the ICU, but even with the addition of Roberts and Alito, courts recoil from being unilaterally and imperiously deemed inconsequential, irelevant or unnecessary.

The U.S. Supreme Court said on Friday it would hear appeals by Guantanamo prisoners on their right to challenge their indefinite confinement, a test of President George W. Bush’s powers in the war on terrorism.

The high court in April had denied the same appeals by the prisoners. In a surprise and highly unusual reversal, the justices said they would hear arguments and decide the two cases during the court’s term that starts in October.

At issue is an anti-terrorism law that Bush pushed through Congress last year taking away the right of the foreign terrorist suspects at the U.S. prison at Guantanamo Bay in Cuba to have a judicial review of their detention.

The Supreme Court’s decision to hear the cases was a setback for the Bush administration, which had urged the justices to turn down the appeals.

[snip]

Three of the nine Supreme Court justices in April dissented from the decision to reject the appeals by the Guantanamo prisoners, and two others left open the possibility of hearing the appeals later.

After the appeals had been rejected in April, lawyers for the prisoners asked the court to reconsider, and the court on Friday agreed. The last time the court granted such a request after an initial denial was in 1968, a court source said.

The court gave no explanation in its one-paragraph order for the reversal.

[snip]

Navy Lt. Cmdr. Charles Swift, the military lawyer who represents Guantanamo prisoner Salim Ahmed Hamdan of Yemen, said the upcoming Supreme Court decision could be key.

“It’s almost absolutely a recognition that the problems aren’t getting better in Guantanamo with time,” Swift said.

[snip]

Air Force Col. Moe Davis, the military’s chief prosecutor for the Guantanamo tribunals, said the Supreme Court’s about-face was disappointing.

“This constant uncertainty and meddling certainly takes a toll on people,” he said. “It would be nice to have some certainty for a change.” Article

More:

The order also said that new briefs will be sought, after the D.C. Circuit rules in pending cases on how judicial review is to work for detainees under the Detainee Treatment Act of 2005. The cases to be reheard by the Supreme Court are Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). In those cases, the D.C. Circuit ruled on Feb. 20 that the Military Commissions Act of 2006 had stripped detainees of their rights to bring habeas challenges to their confinement. That is the ruling that the Supreme Court left intact in April, but now will move forward to review.

Under the Court’s Rules and precedents, it would have taken the votes of five Justices to grant rehearing, compared with the requirement of four votes to initially grant an appeal. When the Court denied review in April, only three Justices voted to hear the cases. But two of the other six, Justices John Paul Stevens and Anthony M. Kennedy, indicated they wanted the detainees to first attempt to get legal relief in the D.C. Circuit. Under the Detainee Treatment Act, the Circuit Court has the authority to provide limited review of military decisions to continue holding Guantanamo prisoners as “enemy combatants.”

Friday’s order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing.

[snip]

Under the Court’s rules, a rehearing is granted only if there has been a change in “intervening circumstances of a substantial or controlling effect” or if counsel can cite “substantial grounds not previously presented.”

The new order did not state what changes had come about since the denial in April. The detainees’ lawyers, in their rehearing petition, had said that the unfolding of the review process in the D.C. Circuit Court would soon provide them with an argument for rehearing, since the process would be shown to be inadequate. More recently, the detainees’ lawyers had told the Court that information from inside the Pentagon detainee-review process confirmed their claim that the process was a “sham.” Article

A second helping of cookies for the judge:

A military judge at Guantanamo Bay, Cuba, refused on Friday to reconsider an early June ruling that a military commission does not have the authority to hold a war crimes trial of a young Canadian detainee, Omar Ahmed Khadr. Turning aside a plea by military prosecutors, Judge Peter E. Brownback III, an Army colonel, said again that the military panel that reviewed Khadr’s status had not found him to be an unlawful enemy combatant, so a commission trial cannot be held and war crimes charges had to be dismissed. This new ruling set the stage for a Pentagon appeal — if some uncertainty over the availability of a proper appeals court is sorted out.

[snip]

The judge’s earlier order dismissing charges against Khadr was the second of two such rulings by a judge at Guantanamo on the same day. In a separate proceeding, another judge dismissed charges against Salim Ahmed Hamdan, for the same reasons. Prosecutors had also asked that judge to reconsider, but there was no word from that judge on Friday.

Judge Brownback, in a 10-page order in the Khadr case…said the plea for reconsideration to did not offer any change in the facts or law since his June 4 order finding no jurisdiction over Khadr’s case. But, the order went on, because of the prosecution request, he was clarifying the rationale for his earlier decision. While refusing to reconsider, the judge went ahead to dispose of each of the prosecutors’ arguments against the dismissal “in the interest of conserving judicial and other resources” should the case be appealed either to the new Court of Military Commission Review or the D.C. Circuit Court. Article

Noted FYI (absent though is mention of alleged plans to fund and open Kafka-Marts prisons overseas and franchise out the dreadful Gitmo brand and its inhabitants:

A group of 145 members of the House of Representatives sent a letter to President Bush on Friday urging him to close the prison at Guantanamo Bay, Cuba, and move the detainees there to military prisons in the United States. Article