When not to decide is not to decide

In December I wrote about a Honduran national on trial for murder in Durham whose case was poised to be significantly affected by an upcoming Supreme Court case, Medellin v. Dretke. The issue was whether the prosecution's violation of a Geneva Convention rule about notifying the foreign national's consulate constituted a procedural bar to the prosecution. With a capital sentence at stake, obviously this was no small question.

Between December and the date the case was heard, in March, the Bush administration caved, at least in regard to the defendants involved in Medellin: it ordered that all 51 of the defendants joined in that case be allowed to make their procedural defense. (At the same time, it announced that the U.S. was withdrawing from this inconvenient treaty obligation.)

The Supreme Court's decision was announced Monday. The appeal was dismissed "in order to give the Texas state courts a chance to sort out the issues." Those cases will get sorted out, but what about the defendant in Durham and others elsewhere? Four justices would have held on to jurisdiction so that eventually they could decide the question. "It seems to me unsound to avoid questions of national importance when they are bound to recur," Justice O'Connor said. Justice Ginsburg was the swing vote for dismissal.