In a surprise reversal, the U.S. Supreme Court said without comment Friday that it will review a Guantanamo Bay detainee's challenge of the White House's war-on-terror powers.
The court's action, granting a so-called writ of certiorari, came in a combined case carrying the names of a Kuwaiti and an Algerian who have been held at the remote U.S. Navy base in Cuba since 2002. Neither has been charged with a crime.
It means both Bush administration and detainee lawyers will likely go before the court in October for a third time to resolve whether and how a president can indefinitely detain an "enemy combatant'' and sometimes subject him to military trial.
The White House expressed regret at the decision.
"We did not think that court review at this time was necessary, but we are confident in our legal position,'' said National Security Council spokesman Gordon Johndroe.
"We're elated,'' countered Anthony Romero, executive director of the American Civil Liberties Union.
The case bringing Guantánamo back to court revolves around the status hearings staged by officers at the Cuba base to simulate battlefield reviews -- and comes at a time of far-flung criticism of the so-called Combatant Status Review Tribunals.
The Pentagon designed the CSRT system to study, one by one, each Guantánamo captive's file to see whether he was properly held as an “enemy combatant'' … in response to a 2004 Supreme Court ruling.
But on June 4, military judges dismissed the only two active war-crimes cases against Guantánamo captives. They ruled, separately, that the Pentagon system did not distinguish between "unlawful enemy combatants,'' a congressionally mandated prerequisite to a trial -- and "lawful enemy combatants,'' such as prisoners of war entitled to be on the battlefield.
Then, last week, lawyers for detainees held without charge at Guantánamo as enemy combatants submitted a sworn affidavit from a veteran military officer describing the process as unfair.
"What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,'' wrote Lt. Col. Stephen Abraham, 46, a reserves military intelligence officer and California attorney.
Abraham was mobilized for six months in 2004 and 2005 to the Pentagon, where he worked in the tribunal bureaucracy that reviewed the cases of all 500 Guantánamo captives.
He described a haphazard, inconsistent system of presenting at-times classified intelligence to military officers assigned specifically to serve at Guantánamo, listen to each captive argue his side of the case and then issue a recommendation on whether to keep the man --or let him go.
Under the court's rules, Friday's decision to review the issue meant that five justices agreed to hear the case.
On April 2, only Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter said they wanted to review the cases bearing the names of Algerian detainee Lakhdar Boumediene, now 41, and Kuwaiti Fawzi al Odah, now 30.
Both men have been held --without charge-- as “enemy combatants'' since January 2002.
Justices John Paul Stevens and Anthony Kennedy wrote at the time that it was premature to intervene, suggesting that it may have been those two justices who had a change of heart -- producing Friday's surprise decision on the verge of summer recess.
In Washington, al Odah attorney Matthew MacClean said the justices will decide the constitutionality of a law adopted by Congress that stripped detainees of U.S. District Court habeas corpus review, and gave a federal appeals court more limited review.
"The Supreme Court has agreed to decide whether or not the Military Commissions Act is constitutional where it withdraws habeas corpus jurisdiction for Guantanamo detainees,'' he said.
The principle of habeas corpus allows a captive to challenge his detention in federal court; the act gives an appeals court a much more limited scope of review.
Hours after the Supreme Court took the case, an Army judge upheld the dismissal of a Military Commission case against captive Omar Khadr, 21, accused of the 2002 grenade killing of a U.S. Special Forces medic in Afghanistan.
“The term 'unlawful' is not excess baggage, and it is not mere semantics,'' wrote Army Col. Peter E. Brownback III, reasserting his earlier ruling.
A Pentagon spokesman had said Brownback and another judge, Navy Capt. Keith Allred, had been wrong to separately dismiss charges against Khadr and another captive because there was "no material difference'' between lawful and unlawful enemy combatants.
Congress, in fact, had distinguished between lawful and unlawful combatants when it created the 2006 Military Commissions Act as a remedy fr another Supreme Court ruling -- Hamdan vs. Rumsfeld, which declared illegal an earlier commissions formula.
Friday's agreement to hear Boumediene and Al Odah vs. Bush could produce a ruling that could provide guidance on how to resolve the thicket of cases in the military and civilian systems.
Earlier this month, the Fourth Circuit Federal Appeals Court ruled that the Defense Department could not indefinitely hold Qatari captive Ali al Marri, a legal U.S. resident and as of today the lone “enemy combatant'' on U.S. soil.
Jose Padilla had been another but, after a Fourth Circuit setback, was charged with a crime and sent to Miami, where he is currently on trial.
An Illinois law professor who represents 17 Yemeni men at Guantánamo Friday called the reversal "an extraordinary step.''
"It highlights the fundamental importance of these issues and, most important, it means that the detainees will not be forced to wait years for the opportunity to have the court weigh in on their constitutional rights,'' said Marc Falkoff of the Northern Illinois University College of Law in DeKalb.
Falkoff caused a stir this month by publishing a book of poetry written by Guantánamo detainees. It was translated by Pentagon-approved linguists and reviewed by military censors.
A Pentagon spokesman called "what they claim to be poetry … seemingly not done so for the sake of art.''