Supreme Court ruling could free scores from Guantanamo

McClatchy NewspapersJune 12, 2008 

WASHINGTON — The Supreme Court's landmark Guantanamo Bay decision Thursday could free foreign prisoners while it inflames Capitol Hill.

Some consequences are immediate, for a case that's big legally, politically and militarily. Within hours of the court's decision in the combined cases known as Boumediene v. Bush and Al Odah v. United States, attorneys were preparing to demand hearings for detainees long held without charges.

These habeas corpus hearings before federal judges will force the Bush administration to reveal its evidence and expose publicly how the detainees have been treated. Some attorneys think that the administration simply will start releasing detainees to avoid the potentially embarrassing hearings altogether.

"Frankly, I don't think the government is going to want to continue to hold these detainees," predicted Matthew MacLean, co-counsel for a detainee named Fawzi Khalid Abdullah Fahad al Odah.

Eugene Fidell, the president of the National Institute of Military Justice, agreed that the court ruling would provide "additional incentive for the administration to repatriate as many people as possible."

MacLean, a former Army prosecutor, noted that 100 to 200 detainees have had habeas corpus petitions on hold waiting for the Supreme Court to rule. Now that it has, Odah and others can pursue their cases before an assortment of judges in the U.S. Court of Appeals for the District of Columbia Circuit.

Thursday's decision allows lawyers to file petitions one by one challenging the detentions of named prisoners. It also allows judges who'd put earlier petitions on hold to reactivate the files.

The ruling also will propel action on Capitol Hill, where lawmakers including Democratic Sen. Dianne Feinstein of California accelerated their demands Thursday to shut down the Guantanamo facility. Feinstein's bill ordering the closure currently has five co-sponsors.

"The question of closing Guantanamo is a matter of when, and not if," Feinstein said on the Senate floor.

On the flip side, Republican Sen. Lindsey Graham of South Carolina threatened to "explore the possibility of a constitutional amendment to blunt the effect of this decision." This is an extreme long shot, though lawmakers could vent about the alleged dangers that Odah and his fellow detainees pose.

A Kuwaiti native who was seized in Afghanistan, Odah is one of 270 men held in the heavily guarded U.S. facility at Guantanamo Bay. In separate lawsuits, Odah and an Algerian native named Lakhdar Boumediene challenged their detentions.

In its 5-4 ruling Thursday, the Supreme Court declared that the constitutional right of habeas corpus extends to the foreign prisoners even though they're held overseas. The court rejected Bush administration arguments that Guantanamo's location put it outside U.S. constitutional protections.

"The United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory," Justice Anthony Kennedy noted.

Kennedy and four other justices further concluded that the detainees deserved full habeas corpus access to federal courts, despite congressional efforts to curtail it. Through habeas corpus hearings, prisoners can challenge the legal basis for their incarceration.

In the hearings, the burden will be on the government to show that it has sufficient evidence that the men are enemy combatants and can be charged with crimes. While it's unlikely that any of the detainees will appear at the hearings, they'll be able to offer exculpatory evidence. Judges can settle on remedies that include ordering release.

"My guess is we're going to see a high number of people who the government will have to release," predicted Michael Ratner, the president of the Center for Constitutional Rights.

The center brought the first lawsuits in 2002 challenging the Bush administration's treatment of alleged enemy combatants. Since those early lawsuits, some 600 pro bono attorneys have rallied to the cause of the Guantanamo detainees.

"I think it's going to have a huge impact," said one top U.S. official who's familiar with the foreign prisoner situation, speaking on condition of anonymity because he wasn't authorized to talk to the media. He added that "it could take several weeks to make sense of this."

Ratner noted, for instance, that the decision didn't directly apply to captives facing charges by military commissions set up by the Bush administration and approved by Congress in 2006. In the long run, though, some attorneys suggested that those facing commissions still might try filing habeas corpus petitions to challenge the commissions.

Twenty men currently face trials before military commissions. They include alleged 9-11 mastermind Khalid Sheikh Mohammed — a Pakistani once held by the CIA who's now charged with a crime punishable by death — and Osama bin Laden's driver, Salim Hamdan — a Yemeni charged with supporting al Qaida, a crime with a maximum penalty of life in prison.

"While we disagree with the ruling, it is important to note that the Boumediene case did not involve military commissions," Justice Department spokesman Peter Carr said late Thursday afternoon. "Military commission trials will continue to go forward."

The court noted that the hearings could implicate "sources and methods" of intelligence-gathering, but expressed confidence that federal judges could protect sensitive information.

One of the next big questions — or embarrassments — could revolve around what happens to detainees who win their freedom at habeas corpus hearings but have no place else to go.

"The brutally frank answer is that we're stuck," Defense Secretary Robert Gates told senators recently. "And we're stuck in several ways: Either their home government won't accept them or we are concerned that the home government will let them loose once we return them home."

(Rosenberg reports for The Miami Herald. Jonathan S. Landay, Greg Gordon and Marisa Taylor contributed to this article.)

McClatchy Newspapers 2008

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