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Justices Say Detainees Can Seek Release
"The costs of delay can no longer be borne by those who are held in custody," wrote Kennedy, who, in a return to the pivotal role he played last term, joined the court's liberal justices -- John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. "The detainees in these cases are entitled to a prompt habeas corpus hearing."
Kennedy made it clear that the ruling does not mean the detainees could prevail in such hearings. He also said the decision does not address whether the president holds the authority to detain those thought to be enemy soldiers in the battle against terrorism.
Yesterday's decision in Boumediene v. Bush and Al Odah v. United States continued an administration losing streak with regard to the Guantanamo detainees issue. The court ruled in 2004 in Rasul v. Bush that federal law provided the detainees the habeas privilege because of the unique control the U.S. government has over the land at the Cuban base.
The Republican-led Congress responded by changing the law, and after another adverse court ruling and at the urging of the administration, it passed the Military Commissions Act in 2006. The legislation endorsed a military system for designating detainees as enemy combatants and for trying those charged with crimes. It also strictly limited judicial oversight.
The court yesterday first had to decide again whether those held in Guantanamo have a right to habeas under the Constitution, since Congress changed the law. It ruled that they do, again because of the government's control of the land.
The court acknowledged it was the first time it had ruled that "noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution."
Such a constitutional right can be suspended by Congress only in times of "rebellion or invasion," and the government did not argue that situation faced Congress at the time it changed the law.
Then, the court had to decide whether the method devised for determining whether a detainee could be classified as an enemy combatant -- and thus indefinitely held -- is an adequate substitute for a habeas hearing before a judge.
Those hearings, called Combatant Status Review Tribunals, are held before military authorities. The majority noted that the prisoners are not represented by lawyers and have limited ability to present evidence on their behalf, and that there is no mechanism for their release by a federal court reviewing the decision if the court feels there is inadequate reason to hold them.
The risk of error, Kennedy wrote, is too great, especially when a person is detained because of an executive order. "We hold that those procedures are not an adequate and effective substitute for habeas corpus," he wrote.
Chief Justice John G. Roberts Jr., joined by Scalia and Justices Clarence Thomas and Samuel A. Alito Jr., wrote a stinging rebuttal defending what he called "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."
He assailed the majority for rebuffing the system "crafted" by the political branches before it had been fully reviewed and implemented by the lower courts. The decision, he said, "is not really about the detainees at all, but about control of federal policy regarding enemy combatants."
Scalia, in the dissent he wrote, accused the majority of ignoring a precedent that declined to extend habeas protection to foreign aliens, and noted it had suggested in earlier rulings that the president and Congress work together to come up with a substitute for such hearings.
"Turns out they were just kidding," he wrote sarcastically.
Even some members of Congress who voted for the Military Commissions Act, such as Sen. Arlen Specter (R-Pa.), had predicted that the court would find provisions of the law unconstitutional.
But Sen. Lindsey O. Graham (R-S.C.), a key figure in the passage of the act, denounced "what I think is a tremendously dangerous and irresponsible ruling by the U.S. Supreme Court. The court has conferred upon civilian judges the right to make military decisions."
Staff writer Dan Eggen in Rome contributed to this report.