What's next for Guantanamo prisoners?

McClatchy NewspapersDecember 5, 2007 

WASHINGTON — Guantanamo Bay prisoners keep winning at the Supreme Court, yet never get what they really want: their freedom.

Here's what could happen next in the latest Guantanamo controversy, based on a new round of oral arguments before the justices Wednesday and on past opinions and other court cases.

The 37 Guantanamo Bay prisoners who are part of the current lawsuits want to file habeas corpus petitions challenging their open-ended detention. They say that special military tribunals established by the Bush administration are constitutionally inadequate.

They appear likely to win at least a partial victory that leaves key issues — including courtroom procedures — unresolved.

"There are going to be difficult questions," Solicitor General Paul Clement predicted Wednesday. For instance, he added, "we have difficult questions about the extent to which classified information should come in."

Don't look for a decision in Boumediene v. Bush and Al-Odah v. United States until early next summer. The court often puts off its toughest decisions until just before it recesses in June.

Anticipate a very close call. Although oral argument questions are an imperfect predictor, Wednesday's nearly 90-minute session suggested that justices are divided more or less evenly.

In one camp: Chief Justice John G. Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas.

Although Thomas remained silent Wednesday, as is his custom, he sympathizes with the Bush administration's expansive wartime claims for executive branch power.

"The court's evident belief that IT is qualified to pass on the military necessity of the commander in chief's decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot go unanswered," Thomas declared last year in a previous Guantanamo Bay case.

In the other camp reside Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Stevens wrote the 2006 majority opinion that Thomas objected to, striking down military commissions established for Guantanamo, and Souter and Breyer appeared especially impassioned Wednesday.

"You could have the best procedure in the world," Breyer said Wednesday, speaking hypothetically but fervently as if he were representing detainees, "(but) we still think that Congress, the president, the Supreme Court under the law cannot hold us for six years without either trying us (or) releasing us."

Justice Anthony Kennedy, the court's consistent swingman, seemed to straddle the center with his few questions, and he's a reasonable bet to write the majority opinion.

The foreign-born Guantanamo Bay prisoners seem poised to win on the threshold question of whether the U.S. Constitution protects their legal rights. The Bush administration argues that it doesn't, because they're being held overseas, but the court has observed previously that the U.S. Navy base is entirely under American control.

"I thought that was decided" in 2004, Ginsburg said Wednesday. "That's why I'm so surprised at the government's position."

Even Clement, arguing for the Bush administration, offered a fallback position in which the court would "assume" that the Constitution applies to the Guantanamo Bay prisoners without explicitly ruling on the question. That might limit the legal fallout for the Bush administration, but it seems a stretch.

Theoretically, the court could go much further in the other direction and rule against continued detention of the Guantanamo prisoners as enemy combatants. That likewise seems unlikely, as the court usually prefers narrower rulings.

"There is no reason for this court to pass on the merits of the petitioners' detention before the lower court has done so," Clement declared in a legal brief.

The final, and perhaps most delicate, question becomes what to do with the military tribunals that Congress and the Bush administration established to hear Guantanamo Bay cases. A narrow Supreme Court opinion might simply direct the U.S. Court of Appeals for the District of Columbia Circuit to fully evaluate the tribunals, which differ significantly from standard civilian courts.

Alternatively, the Supreme Court could find particular fault with some aspect of the tribunal system. This could include, for instance, fixing the inability of an appellate court to order the release of a Guantanamo prisoner if the tribunal procedure is flawed.

"Certainly," Clement acknowledged, "if this court thinks that the constitutional line essentially necessitates that the D.C. Circuit have the authority to release (prisoners), there is no obstacle to that."

McClatchy Newspapers 2007

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