Justices Back Detainee Access To U.S. Courts

"The Hamdi decision was better than the human rights and civil liberties groups asked for," said Joseph N. Onek, director of the Liberty and Security Initiative of the Constitution Project, a Washington-based civil liberties organization.

The court's decision to throw out Padilla's case on jurisdictional grounds was by a 5 to 4 vote.

The court ruled that his attorney incorrectly went to a New York court in search of an order releasing him after the government had moved him to a South Carolina brig.

But unless the Justice Department decides to charge Padilla, it seemed likely that there will be five votes to let him go once his case comes back up. Four justices -- Stevens, Souter, Ginsburg and Breyer -- dissented from the court's refusal to decide his case yesterday, while Scalia is on record in the Hamdi case as opposing the administration's approach to enemy combatants generally.

As Stevens read his dissent from the court's procedural ruling against Padilla yesterday, his voice quavered. He hinted that the recent revelations of administration planning for harsh interrogations of terrorism detainees and abuse at the Abu Ghraib prison in Iraq had an impact inside the court.

Referring to Padilla's two years of incommunicado detention as a "form of torture," Stevens said that "if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyranny even to resist an assault by the forces of tyranny."

In two consolidated cases, Rasul v. Bush, No. 03-334, and al Odah v. Rumsfeld, No. 03-343, which were brought by family members of 16 British, Australian and Kuwaiti citizens currently or formerly held in the U.S. prison at Guantanamo Bay, this issue was whether the detainees may seek their freedom in U.S. courts by applying for a writ of habeas corpus.

The detainees were not charged with crimes or permitted direct contact with lawyers, and attorneys for their families called the prison a U.S.-created "lawless enclave."

Even before recent revelations that the Bush administration contemplated using harsh interrogation tactics on certain detainees there, Guantanamo had turned into a major international issue.

The administration argued that the naval base is still formally a part of Cuba, and thus outside U.S. court jurisdiction.

In response to diplomatic pressure and military determinations that some detainees are no longer dangerous, the Bush administration has released 146 prisoners from Guantanamo in the past two years, including the two British citizens involved in this case, though 12 of those released are in custody in their home countries. The administration has named six detainees for trial before a military tribunal.

But by a vote of 6 to 3 yesterday, the court said that is not good enough. Stevens wrote for the majority that federal law permits U.S. courts to entertain the prisoners' habeas corpus petitions.

The Bush administration had relied on a 1950 Supreme Court ruling that said foreign prisoners held outside the United States in connection with a war are not eligible for habeas corpus. But a subsequent Supreme Court ruling had overturned that, Stevens wrote.

Stevens left it for the lower courts to answer the question of "whether and what further proceedings may become necessary." His opinion also did not define the intended geographical scope of the ruling. The case as presented to the court concerned only the Cuba base, but Scalia, raising the prospect of lawsuits by prisoners in Iraq and Afghanistan, noted in dissent that the logic of Stevens's opinion "boldly extends the scope of the habeas statute to the four corners of the earth."