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June 13th, 2008 - Justices Say Detainees Can Seek Release
By Robert Barnes
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.
By Agence France Presse
June 13, 2008
Washington - The US Supreme Court ruling that Guantanamo prisoners can challenge their detention in US civilian courts dealt a blow to President George W. Bush, but a senior official said Friday the military trials will continue.
"The laws and constitution are designed to survive, and remain in force, in extraordinary times," the court said Thursday in its historic ruling, the third blow in four years to the government's case for trying "war on terror" suspects in military tribunals.
"Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law," the court added.
The court ruled by five to four that prisoners in the US military prison in southeastern Cuba "have the constitutional privilege of habeas corpus."
President George W. Bush said he would abide by the decision but disagreed with it, and would consider seeking new legislation, while the Pentagon said it would examine the implications of the ruling.
"It's a Supreme Court decision, we'll abide by the court's decision. That doesn't mean I have to agree with it," Bush said from Rome during a European tour.
But in a sign that controversy over the detentions will carry on, US Attorney General Michael Mukasey said Friday that the administration would continue the military trials at the Guantanamo military base on Cuba despite the verdict.
"I think it bears emphasis that the court's decision does not concern military commission trials, which will continue to proceed," Mukasey told reporters in Tokyo, where he was joining talks of justice ministers from the Group of Eight major industrial nations.
He said the decision instead focused on the "procedures that the Congress and the president put in place to allow enemy combatants to challenge their detention."
The top justice official said he was "disappointed with the decision insofar as I understand that it will result in hundreds of actions challenging the detention of enemy combatants to be moved to federal district court."
Thursday's ruling should now give the prisoners and their legal teams the right to demand to know on what basis they are being held.
So far the Bush administration has refused to unveil the body of evidence to justify the prisoners' continued detention, saying it would endanger national security.
It was not immediately clear how Thursday's ruling would affect those 270 detainees still held in the jail, opened in January 2002 to deal with suspects rounded up in the US "war on terror."
"Some of these petitioners have been in custody for the past six years with no definitive judicial determination as to the legality of their detention," wrote Justice Anthony Kennedy in his 70-page majority ruling.
In a dissenting opinion, Chief Justice John Roberts said Congress's attempt "to balance the security of the American people with the detainees' liberty interests has been unceremoniously brushed aside."
Dissenting justice Antonin Scalia went further, writing that "America is at war with radical Islamists" and that the decision "will almost certainly cause more Americans to be killed."
Two-thirds of the 800 prisoners who have passed through Guantanamo's barbed-wire gates have been freed, mostly without charge, after several years in captivity.
Australian David Hicks is the only "war on terror" detainee to have so far been sentenced at Guantanamo after pleading guilty in a deal which allowed him to serve out his nine-month term at home.
Trials under way include that of Khalid Sheikh Mohammed, considered the mastermind of the September 11, 2001 terror attacks in the United States, and Osama bin Laden's driver, Salim Hamdan.
White House hopefuls Republican John McCain and his Democratic rival Barack Obama have both said they will close the prison, and Obama welcomed the decision saying it rejected "the Bush administration's attempt to create a legal black hole at Guantanamo."
"This is an important step toward re-establishing our credibility as a nation committed to the rule of law and rejecting a false choice between fighting terrorism and respecting habeas corpus," he said.
McCain said however he was concerned by the ruling, adding: "These are unlawful combatants. They are not American citizens."
The White House has repeatedly said it would shut Guantanamo down, but has failed so far to come with an alternative, or to find countries willing to take some prisoners, such as Muslim Uighurs from northwest China, who face repression at home.
The Supreme Court took up the issue of Guantanamo inmates in 2004 and again in 2006, ruling both times that detainees had a statutory - legal but not constitutional - right to contest their indefinite detention.
But Congress in 2006 simply passed new legislation that forbade them from seeking justice in a federal court until they are judged by a special military tribunal.
Amnesty International said Thursday's ruling was an "essential step forward towards the restoration of the rule of law."
Copyright © 2008 AFP.