By Robert Barnes
Washington Post Staff Writer
Thursday, December 6, 2007
Detainees held for nearly six years at the Guantanamo Bay military prison got another hearing at the Supreme Court yesterday, but the justices appeared to remain divided about whether the prisoners deserve a more basic right to challenge their imprisonment before a judge.
At issue is whether the detainees have a constitutional guarantee of the writ of habeas corpus, the ability to try to prove before an independent judge that they are unlawfully held. If so, the court faces the question of whether the alternative military tribunals created by the Bush administration and Congress -- which provide a limited role for the federal courts -- are an adequate substitute.
It is a case that raises profound questions of the separation of powers and the role of the federal courts during wartime. The scene at the court was befitting of such a moment: Protesters in orange jumpsuits demonstrated outside against Bush administration policies, and more than 70 people spent the night in line to get a place in the courtroom.
But the nearly 90-minute argument was short on soaring rhetoric and longer on the search by some justices -- particularly Justice Anthony M. Kennedy, likely to be the pivotal vote -- for practical remedies. Those justices seemed to acknowledge that the detainees deserve more independent review than they now receive, but they appeared unsure of how it could be provided.
Solicitor General Paul A. Clement seemed mindful of the court's previous rulings criticizing the Bush administration's policies toward terrorism detainees. He appealed to the justices to respect "the best efforts of the political branches, both political branches," to balance the interests of the prisoners to challenge their detention with the administration's prerogatives to "successfully prosecute the global war on terror."
He said worries about the adequacy of the military tribunals that hear the detainee cases could be addressed and even suggested for the first time that there is nothing in the law that would keep federal judges from freeing suspects if the court found that detention was not warranted. Attorneys for the detainees said they had not heard the government make such a concession before.
Seth Waxman, who held Clement's job as the government's top lawyer before the court during the Clinton administration and now represents the detainees, said procedures established by the president and Congress include "Kafka-esque" rules. The proceedings thwart the goal of determining which of the approximately 300 men held at Guantanamo are legitimate enemies of the United States and which were innocently swept up in the rush to protect the country from terrorism, he said.
A fundamental quality of habeas proceedings is speed, he said.
"These 37 men," Waxman said, referring to the specific plaintiffs in the two cases, Boumediene v. Bush and Al Odah v. United States,"have been held in isolation for nearly six years."
Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. were the most skeptical of Waxman's arguments.
Scalia asked Waxman if he could name "one single case" in the nation's history, or in 500 years of English law, that would extend the writ to foreigners detained outside the country.
Waxman responded that the answer was a "resounding yes," but nothing he produced satisfied Scalia, who repeatedly returned to the question.
Justice Ruth Bader Ginsburg, however, referred to a 2004 ruling by the court when she said: "I thought this was decided in Rasul." In that case, Rasul v. Bush, the court held that the reach of the federal courts extended to the military prison in Cuba, which is on territory controlled by the United States.
The difference in the cases is that the court held then that the detainees had a statutory -- rather than constitutional -- right to habeas, and Congress subsequently changed the law to make clear that was not the case.
But even if the court holds that the captives have a constitutional right to challenge their detention, the next question would be whether the military tribunals used to determine whether the suspects may be held indefinitely as enemy combatants are an adequate substitute for habeas proceedings.
Justices Stephen G. Breyer and David H. Souter seemed convinced that they are not, and Justice John Paul Stevens asked Clement whether the detainees' claims that they have been unlawfully held for six years was "relevant to the question whether they have been provided such a wonderful set of procedures."
The court's decision in the case is complicated by the fact that it is reviewing a decision by the U.S. Court of Appeals for the District of Columbia Circuit that did not reach some of the issues the court heard yesterday. The lower court held that the detainees had no constitutional rights, and so did not move on to the issue of whether the tribunals are an adequate habeas substitute.
Clement seemed especially accommodating to justices looking for ways to remedy the military system and said that the D.C. Circuit, designated by the legislation to hear reviews of the work of the military tribunals, is empowered to look for constitutional shortcomings.
Ginsburg seemed to suggest that the court should find that the detainees have a constitutional right to habeas and send the case back to the lower court for a determination of whether the procedures mandated by Congress are "an adequate substitute."
That would technically be a win for Waxman and his clients, but not one he particularly wanted. Reviews by the court have been a painstakingly slow process, and challenges to the determination by the lower court could easily extend well beyond Bush's term in office.
"I'm not saying that this court couldn't do that," Waxman told Ginsburg. But the "principal guarantee of habeas corpus through the centuries has been a speedy -- the remedy of speedy release for somebody who is unlawfully being held in executive detention."
And as Kennedy probed ways to keep the current system but make it more responsive to the detainees, Waxman said the detainees deserve a chance to make their case to a judge.
"The time for experimentation is over," he said.