Munaf and Omar Go to White Castle

Of all the striking things about the consolidated cases the Supreme Court is set to hear this Tuesday presenting the question whether U.S. citizens held by the U.S. military in Iraq can seek habeas review of their detention in the U.S. federal courts the most striking to me has got to be how little anyone seems to care.

I should say I’m not one to raise the specter of public inattention lightly. Indeed, it always drove me a little bit nuts how often ( viz. invariably) I’d get the question at public panels devoted to post-9/11 law and security issues (usually with respect to torture): “Why doesn’t anyone seem to care about this?” First, a huge number of people demonstrably care (including the hosts of the forum and everyone attending). Congress has legislated now repeatedly on the topic. Foundations and nonprofits have devoted comparatively enormous quantities of time and resources to advancing (to greater or lesser degrees of success) their views. Academic and popular publications have proliferated on this like copies of Thriller c. 1983. And as far as I can tell, pretty much everyone in the press has covered it (torture in particular) at one time or another in recent years. Not, of course, that there’s anything wrong with that.  Second, I’m a lawyer, not a public opinion pollster. To the extent one hasn’t encountered one’s preferred level of rioting in the streets on a particular issue, I’d as soon defer on the “why” question to political scientists, clergy members, and marketing analysts (not necessarily in that order). Third, on what actual basis is anyone asserting there isn’t “anyone” who cares? Their own polling? The issue’s relative absence on the cover of People magazine?

Now where was I? Ah, being slightly more careful lest I be rightly accused of self-contradiction. Trying again I’ve heard comparatively little about this case at the listservs, blogs, conferences, columns, amicus briefs, etc. folks in my field frequent. Maybe I just don’t get out enough. Whatever the case, I think Geren v. Omar and Munaf v. Geren have the potential to be at least as important as Hamdi , Rasul , and Hamdan the banner Supreme Court cases post-9/11 dealing (mostly favorably) with individual rights in the face of executive power. 

While I’m hoping/guessing Dahlia will help fill the relative vacuum with her usual fabulous account of oral arguments on Tuesday, here are some questions I’d be most interested in hearing my fellow bloggers address in the meantime: 1) Anyone think this case is not likely to take another chunk out of the idea that the executive acting on security matters abroad is entitled to total deference by the courts? 2) On the foreign affairs and the U.S. Constitution front (if not the hypocrisy front), what do folks make of the administration’s argument here that the source of executive power to detain Americans abroad in Iraq may be found (effectively) in international law?