The Fourth Circuit’s Mossaoui opinion seems like a significant, though far from complete, victory for Moussaoui, relative to what the government would have liked. Moussaoui is getting less by way of evidence from various military detainees than the district court said he should have, but he’s getting a lot more than the government wanted to give him. (Thanks to How Appealing for the pointer.)
I’m probably not going to blog much about the details of the case, because it’s pretty complex and I’ll have to run shortly. But I thought I’d note it, and mention that the lead opinion was written by Judge William Wilkins, a Reagan appointee, a partial concurrence-and-dissent (a bit more pro-government in theory, but not much in practice) was written by Judge Karen Williams, a Bush 41 appointee, and the more pro-Moussaoui concurrence-and-dissent was written by Judge Roger Gregory, a Clinton recess appointee who was reappointed by Bush 43.
This lineup makes it somewhat more likely that the government will go along with the panel decision, and that the Fourth Circuit will not reverse it en banc. But my guess is that the government will nonetheless ask for en banc, and then ask for certiorari, assuming there are no procedural bars to certiorari at this stage. (Certiorari petitions are generally supposed to come after a final judgment, and this case is a long way from that; but there are quite a few exceptions to this general rule.) If there are indeed no procedural bars, I expect that the Supreme Court will then grant certiorari. Can any Supreme Court procedure mavens tell me whether the early stage of the litigation will indeed keep the Court from granting cert at this point? My inclination is to say that one of the exceptions would apply, but I’d like to hear more expert opinion on this.
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