White House Loses Ground with High Court

The Supreme Court's reversal of the Guantanamo cases shows that Bush administration lawyers played the odds and lost, and that some justices have run out of patience with the administration.

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ROBERT SIEGEL, host:

We're joined now by NPR legal affairs correspondent Nina Totenberg. And Nina, can you explain why, after less than two months, the Supreme Court would reverse itself?

NINA TOTENBERG: Well, the Supreme Court in April basically said fins(ph). Let's let the lower courts deal with this for now. And two things happened. The D.C. Circuit heard arguments on how far reaching their review should be of the so-called combat status trial review proceedings at Guantanamo.

And the government took the position that the court could only look at the official record of those Guantanamo proceedings. The court couldn't look at anything else, and that prompted Judge Douglas Ginsberg, who's a Reagan appointee, to inquire, well, how do we know what we don't know if we don't know it? And then, the detainee lawyers did a second thing. They filed an affidavit with the D.C. Circuit and with the Supreme Court from a lieutenant colonel who'd been the liaison between the combat status review trials and the intelligence agencies at Guantanamo.

And under oath, he said that contrary to the government's assertions that all exculpatory evidence was presented at those proceedings, that simply wasn't true and that the intelligence agencies specifically refused to provide that sort of information or to certify that it was provided.

SIEGEL: So the sand was really running out from under the government's position here?

TOTENBERG: Exactly. And when the Supreme Court asked the government to reply to the petition from the detainee lawyers for reconsideration of the decision not to hear this case, the government, playing the odds, jumped the gun. And instead of taking the whole 30 days allotted for a response, it answered in half that time figuring that the Supreme Court would do what it always does -refuse to consider the question a second time, and that the case would be put off until next term and most likely for another year.

SIEGEL: Now, there's an issue of arithmetic here. How many of the nine justices does it take to grant a motion to reconsider?

TOTENBERG: It takes five votes - a majority of the court. Normally, it takes only four votes...

SIEGEL: Four votes to agree to hear it.

TOTENBERG: ...to agree to hear it. But because they'd already said we're not going to hear it, it took - takes a majority. And that's a very strong indication that Justices Kennedy and Stevens have run out of patience.

SIEGEL: So, what do you think the government was thinking, sort of a going for double or nothing and losing here with the Supreme Court?

TOTENBERG: Well, I can tell you right now that the Bush administration lawyers have been incredibly worried about these cases. They know they're on shaky ground, given the recent decisions of the Supreme Court in the Gitmo cases. And the Justice Department these days is a headless horseman. The attorney general is under siege. He is widely dismissed. The deputy attorney general is leaving in a few weeks. The associate attorney general is leaving.

And there's no chance that any of these positions is going to be filled because the Bush administration is at war with the Senate Judiciary Committee. So nobody is going to be confirmed. Only Solicitor General Paul Clement, who's a fine advocate, remains. But as one White House official put it, the Justice Department is so bereft of leadership these days it's like a bowling alley. You just send the ball down and it just keeps going.

SIEGEL: Okay. Thank you. NPR's Nina Totenberg.

TOTENBERG: Thank you.

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