Justices Say Detainees Can Seek Release

By Robert Barnes
Washington Post Staff Writer
Friday, June 13, 2008

A deeply divided Supreme Court yesterday ruled that terrorism suspects held at Guantanamo Bay have a right to seek their release in federal court, delivering a historic rebuke to the Bush administration and Congress for policies that the majority said compromised, in the name of national security, the Constitution's guarantee of liberty.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Justice Anthony M. Kennedy wrote for a five-member majority clearly impatient that some prisoners have been held for six years without a hearing.

The much-anticipated decision was the fourth time the court has ruled against the administration's ambitious attempt to create a framework for detaining and prosecuting terrorism suspects outside the protections the U.S. legal system generally provides.

As a result of the ruling, the approximately 270 detainees remaining at Guantanamo and their lawyers will be able to challenge their detentions before civilian judges, potentially forcing the government to present evidence against them and giving them the chance to call their own witnesses.

Government officials said military commission cases against 20 detainees who have already been charged with specific crimes could go forward, but defense lawyers said the ruling could open the door to court challenges of that process as well.

The decision brought biting dissents from the four conservative justices, with Justice Antonin Scalia taking the unusual step of summarizing his opposition from the bench. "America is at war with radical Islamists," he wrote, adding that the decision "will almost certainly cause more Americans to be killed." He went on to say: "The Nation will live to regret what the court has done today."

A disappointed President Bush was not as dramatic. "We'll abide by the court's position," he said in Rome, in the midst of a European tour. "That doesn't mean I have to agree with it."

He also said the administration will consider new legislation "so that we can safely say . . . to the American people, 'We're doing everything we can to protect you.' "

The cases decided yesterday were brought on behalf of 37 foreigners at Guantanamo Bay. All were captured on foreign soil and have been designated enemy combatants. They have proclaimed their innocence -- some say they were turned over to coalition forces for money -- and for years have asked federal courts for a chance to challenge their captivity.

Their claim is to the writ of habeas corpus, the right with roots in English law and enshrined in the Constitution that gives a prisoner the ability to protest his confinement before an independent judge. The Bush administration chose Guantanamo Bay as the place to house those captured in other countries and suspected of terrorism because it thought such a right did not extend to the base in Cuba.

The administration has sought to restrict access to federal courts by those captured in the fight against terrorism since the Sept. 11, 2001, attacks. Those efforts have led to clashes between the courts, the president and Congress.

Each time, the Supreme Court has ruled against the administration, but the majority noted yesterday that losing the battles has not kept the administration from winning the war: After six years, none of the detainees has succeeded in getting his complaint reviewed by a judge.

"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.

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