Supreme Court rules Guantanamo prisoners have right to sue in U.S. courts

McClatchy NewspapersJune 12, 2008 

WASHINGTON — A sharply divided Supreme Court ruled Thursday that Guantanamo Bay detainees can challenge their extended imprisonment in federal court, and struck down as inadequate an alternative review system that Congress set up.

Repudiating a key tenet of the Bush administration's war-on-terrorism policy, the court's 5-4 majority concluded that foreigners held at the U.S. naval base at Guantanamo Bay, Cuba, retain the same rights as U.S. residents to seek writs of habeas corpus. The landmark ruling will permit several hundred accused enemy combatants to see the evidence that justifies their captivity.

"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," Justice Anthony Kennedy wrote. "Their access to the writ is necessary to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek."

The long-awaited ruling in the combined cases known as Boumediene v. Bush and Al Odah v. United States is the latest in a string of judicial defeats for the Bush administration. It marks the third time in four years that the Supreme Court has repudiated the administration's efforts to exclude foreign prisoners from traditional legal protections.

The twin cases, which Kennedy noted "lack any precise historical parallel," also mark the first time in U.S. history that constitutional habeas corpus rights have been extended to alien fighters detained overseas. The ruling covers some 270 men currently held at Guantanamo. It doesn't directly address the 20 or so men who now are facing trials before separate military commissions.

"It's been a long struggle," said Michael Ratner, the president of the Center for Constitutional Rights, which filed the first lawsuits challenging the detentions. "It's a major vindication."

David Cynamon, the lead attorney for a detainee named Fawzi Khalid Abdullah Fahad al Odah, added that the ruling was a "complete victory not only for our clients but for all Americans and citizens the world over."

The court's conservative wing — comprising Chief Justice John G. Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito — dissented, at times with sharp words of its own.

"The nation will live to regret what the court has done today," Scalia warned.

Justice Department spokesman Peter Carr said the department was disappointed in the decision and would review it. Carr noted that the decision didn't touch directly on the military commissions now under way.

Al Odah, a Kuwaiti native, Algerian native Lakhdar Boumediene and their fellow detainees were seized abroad and have never been held on the U.S. mainland. The long-awaited ruling doesn't question the Bush administration's authority to detain the men. Instead, it resolves a long-running fight over what legal protections cover them.

In 2004, the Supreme Court ruled that the Guantanamo Bay detainees had a right to challenge their detentions under a statute passed by Congress. Congress responded by stripping federal courts of their jurisdiction, thereby blocking further habeas corpus petitions. The Supreme Court next ruled that the 2005 law didn't apply retroactively to Guantanamo Bay petitions that already had been filed.

Congress returned with the Military Commissions Act of 2006, blocking all Guantanamo habeas corpus cases.

In Latin, habeas corpus means "produce the body." A legal principle dating perhaps as far back as the 13th century, it enables prisoners to demand in court the legal justification and factual basis for their detentions.

"The (Constitution's) framers viewed freedom from unlawful restraint as a fundamental precept of liberty," Kennedy wrote, amid a lengthy historical recitation in his 70-page opinion, "and they understood the writ of habeas corpus as a vital instrument to secure that freedom."

The Bush administration contended that the men don't have habeas corpus rights because they're foreigners and aren't imprisoned on U.S. soil. The United States has leased the 45-square-mile Guantanamo Bay property from Cuba since 1903, and the court noted that the United States maintains an "objective degree of control" over the overseas facility.

"Our basic charter cannot be contracted away like this," Kennedy wrote. "The Constitution grants Congress and the president the power to acquire, dispose of and govern territory, not the power to decide when and where its terms apply."

While traveling in Italy, Bush said: "We'll abide by the court's decision. That doesn't mean I have to agree with it. It's a deeply divided court, and I strongly agree with those who dissented."

One key White House ally, Republican Sen. Lindsey Graham of South Carolina, added that the court's ruling was "tremendously dangerous and irresponsible," and he complained that the civilian justices didn't understand military necessity.

Currently, the Guantanamo prisoners go through three-member combatant status review tribunals. These panels determine whether the detainees are properly considered enemy combatants. The military panels can rely on classified evidence that isn't given to the prisoners. The prisoners have "personal representatives," but not lawyers. The tribunals' officers are required to assume that the government's information is genuine and accurate

The U.S. Court of Appeals for the District of Columbia Circuit then can review the tribunal's proceedings. The combatant status tribunals can continue under the court's ruling. Now, though, the prisoners also will be able to challenge their detentions through the traditional habeas corpus route of going to a single federal judge. The court's majority concluded that the narrower review process is "an inadequate substitute" for the traditional habeas corpus review.

"The detainee has limited means to find or present evidence to challenge the government's case against him," Kennedy noted, further noting that the tribunals aren't permitted to release prisoners even if evidence is found to be insufficient. Federal courts can, however.

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