Habeas Ruling Lays Bare the Divide Among Justices

By Robert Barnes and Del Quentin Wilber
Washington Post Staff Writers
Sunday, June 15, 2008

The Supreme Court's decision that detainees held in Guantanamo Bay, Cuba, have a right to challenge their imprisonment before a judge revealed in vivid detail the justices' deep divide over the role of the judiciary in wartime.

As a practical matter, the 5 to 4 decision returns to the spotlight Washington's federal district judges, who are now conferring to develop a framework for handling about 200 cases filed by those the government suspects of terrorism held at the island naval base.

It is a role that practically consumed the court until Congress, at the behest of the Bush administration, stripped it of the responsibility. Indeed, the cases the Supreme Court decided Thursday, Boumediene v. Bush and Al Odah v. U.S., arose from conflicting decisions by D.C. district judges.

As both sides of the court acknowledged in Thursday's decision, the cases exposed fundamental differences in the court's vision of judicial power. The conservatives favor adherence to strict rules and regulations promulgated by the political branches. The liberals are content to let judges judge, working out the boundaries between constitutional rights and national security.

The tie-breaker was Justice Anthony M. Kennedy, the nomadic conservative who in this case espoused a strong role for independent judges.

His cool assertion in the majority opinion of an essential role for the judiciary brought heated dissents from Chief Justice John G. Roberts Jr. and Justice Antonin Scalia. It lauded the role of the courts as a check on executive power and downplayed deference to the political branches.

"Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person," Kennedy wrote. He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Roberts stopped just short of calling the opinion a power grab. "One cannot help but think . . . this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants," he wrote.

He lamented that military and intelligence officials would have a lesser role in shaping policy toward enemy combatants than lawyers and "unelected, politically unaccountable judges."

Scalia called the judiciary "the branch that knows least about . . . national security concerns" and penned the darkest line of the court's 126 pages of back-and-forth: "It will almost certainly cause more Americans to be killed."

Roberts and Scalia took the additional step of joining each other's dissent, along with Justices Clarence Thomas and Samuel A. Alito Jr.

The decision is not a surprise; the court by a narrow margin has objected each time it has considered Bush administration attempts to handle the terrorism suspects outside the normal confines of the legal system. But both wings of the court displayed a clear impatience.

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