Justices Won't Hear Detainee Rights Cases -- for Now

By Amy Goldstein
Washington Post Staff Writer
Tuesday, April 3, 2007

A divided Supreme Court declined yesterday to consider fresh questions about the legal rights of detainees at Guantanamo Bay, rejecting an appeal by inmates there who are seeking access to federal courts to challenge their imprisonment as "enemy combatants."

The court decision was a significant victory for President Bush, who has asserted for nearly six years that the fate of hundreds of detainees, held without charges as alleged terrorists at the U.S. naval base in Cuba, should be determined by secret military tribunals. The decision leaves intact, at least for now, a measure passed at the administration's urging last year when Congress still was in Republican hands that denies Guantanamo Bay detainees the right to such habeas corpus petitions.

Justices signaled, however, that the high court eventually may hear the cases, filed by two groups of Guantanamo detainees. Three justices dissented yesterday, writing that "these questions deserve this court's immediate attention." And two members of the court, John Paul Stevens and Anthony M. Kennedy, issued a joint statement, emphasizing that the decision "does not constitute an expression of any opinion on the merits" and holding out the possibility that the cases could be considered once detainees tried all the legal steps available to them.

Court rules require the agreement of four of the nine justices to accept a case.

The decision comes after two high court rulings in the past three years that noncitizens arrested around the world in the administration's fight against terrorism and held in Cuba have a right to petition federal judges to contest their detention. Yesterday's decision marks the first time that both of the court's newest members, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have participated in the issue. Alito voted on last year's Guantanamo Bay case, but Roberts recused himself.

The political terrain surrounding detainees' rights also has shifted. Democrats now control Congress and have exhibited interest in repealing the legislation that the court declined to review yesterday.

Administration officials lauded the court for not taking the new cases. "On first glance, we're very pleased with the decision," said White House spokeswoman Dana Perino. Justice Department spokesman Erik Ablin said the decision "will permit the process established by Congress for reviewing detentions to proceed without further delay."

Detainee advocates and several congressional Democrats criticized the court's decision. "All we are asking for is the most fundamental . . . right to go into court and say, 'Why are you holding me?' " said Michael Ratner, president of the New York-based Center for Constitutional Rights, which represents many of the detainees. "If they had a full and fair hearing, there would be hardly anyone left at Guantanamo."

About 385 detainees are imprisoned there now, and only a handful have been charged.

The new cases involve a second generation of legal issues involving Guantanamo Bay, as the administration and the GOP-led Congress sought to grapple with the high court's earlier rulings, in Rasul v. Bush in 2004 and in Hamdan v. Rumsfeld last year.

After the first ruling, the Defense Department established special review hearings for detainees to determine whether they are properly being held as enemy combatants. The hearings allow evidence that would be inadmissible in a U.S. court and provide the detainee a military representative but not a lawyer, detainee advocates say.

The system allows detainees who want to challenge the findings of their hearing to appeal to the U.S. Court of Appeals for the D.C. Circuit, which is to base its review on standards different from those that govern habeas petitions. A second statute, the Military Commissions Act, was enacted to make clear that the system applied to all noncitizen detainees held by the government at Guantanamo Bay and other facilities not on U.S. soil.

Two sets of Guantanamo detainees challenged last year's law in the D.C. Circuit. In February, that court upheld the law, and that ruling was the basis of the appeals the Supreme Court declined to hear. The cases are Boumediene v. Bush and Al Odah v. United States.

"What the court is saying today is that Congress has spoken explicitly about the denial of the court's jurisdiction about the pending cases, and those cases should be reviewed first of all by the D.C. Circuit," said Douglas W. Kmiec, a professor of constitutional law at Pepperdine University. Kmiec noted that Kennedy and Stevens signaled that they may be willing to reconsider "after the process has run its course."

On Capitol Hill, Democrats sought to leverage the court's decision into momentum for their own efforts to grant detainees broader legal rights. "We cannot and should not outsource our legal, moral and constitutional responsibilities," said Senate Judiciary Committee Chairman Patrick J. Leahy (Vt.). He is co-sponsoring legislation that would grant the detainees habeas rights with the committee's ranking Republican, Sen. Arlen Specter (Pa.), who called on his colleagues yesterday to "act promptly" to adopt their bill.

Staff writer Elizabeth Williamson contributed to this report.

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