The detained and the retained: SCOTUS has agreed to take on the case of the Guantanamo prisoners (which sounds like a Hardy Boys mystery -- perhaps Justices Souter and Stevens will end up in their motorboat investigating what's causing those spooky sounds off the Cuban coast).

Not many people think that the Court will actually overturn the lower courts' decision that the federal courts have no direct jurisdiction over the Cuban military camp, in large part because Johnson v. Eisentrager, 339 U.S. 763 (1950) foreclosed access to the federal courts by enemy combatants held on foreign soil. In that view, the grant of cert is primarily a political move, a warning shot across the Administration's bow that the courts intend to keep a close eye on the government's activities.

In addition to the war cases, a reasonably substantial body of law exists showing Guantanamo to be outside U.S. jurisdiction; see, for example,Bird v. United States, 923 F. Supp. 338 (D. Conn. 1996), Cuban American Bar Association, Inc. v. Christopher, 43 F.3d 1412 (11 Cir., 1995) cert. denied, 515 U.S. 1142 (1995), and Odah, et al. v. United States of America. Upending a fairly well-established rule of law of this nature is probably not tops on the Court's list, given the inevitable disruption that would ensue.

However, it's worth noting that Eisentrager rested primarily on the fact that the detainees in that case had been charged with violations of the laws of war under the Geneva Convention, whereas the instant case involves detainees who have arguably been imprisoned contra the Geneva Convention (or, more properly, a category has been created for them that places them outside the bounds of the Convention). There are significant and substantial differences between the two cases, and I wouldn't be surprised if at least three of the Justices see daylight between Eisentrager and Guantanamo. (There's also some dark spots in the history of these wartime cases that points up the ultimate limits of the Court's authority -- but that's a topic for another day.)