Guantánamo detainees win right to court review

Imprisoned terror suspects at Guantánamo Bay, Cuba, won a major legal victory on Thursday when the US Supreme Court ruled that they have the right to petition US courts challenging the legality of their open-ended detention.

The ruling marks a substantial setback for the Bush administration, which had urged the high court to embrace the government's view that Guantánamo detainees enjoy only a narrow range of legal options in disputing their classification as enemy combatants.

The 5 to 4 decision strikes down a portion of the 2006 Military Commissions Act that sought to strip federal judges in the US of the ability to hear legal appeals filed on behalf of the Guantánamo detainees.

The MCA authorized military tribunals to determine whether detainees were being properly held as enemy combatants. The law also set out a sharply limited appeals process.

"Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict," Justice Anthony Kennedy wrote in the majority opinion. "Security subsists, too, in fidelity to freedom's first principles."

He added, "Chief among them are freedom from arbitrary and unlawful restraint...."

In a dissent read from the bench, Justice Antonin Scalia warned that the court's holding would lead to "disastrous consequences."

"The Nation will live to regret what the court has done today," he said.

The decision arrives only weeks before the first terror suspects are scheduled to stand trial before military commissions at the Guantánamo Bay naval base.

Some 270 detainees are being held at the specially constructed prison camp at Guantánamo. The site was originally selected by Bush administration legal advisers because it was thought to exist outside the reach of American constitutional protections and other legal rights.

Administration lawyers have argued that the terror suspects at Guantánamo violated the law of war by engaging in terrorism or support of terrorism and thus are not entitled to the broader legal protections accorded prisoners of war under the Geneva Conventions or the US Constitution.

Lawyers for the detainees countered that many of the men have been held for six years without a fair opportunity to examine and challenge the evidence against them before a neutral decisionmaker. They said the military review process set up at Guantánamo was not an adequate substitute for the right under habeas corpus to force the government to prove the legality of one's detention before an impartial judge.

In its ruling on Thursday, the majority justices agreed. The Supreme Court for the first time declared that the constitutional protections of habeas corpus extend to noncitizens detained outside sovereign US territory.

The court also ruled that the Bush administration and Congress had crafted an unacceptable alternative to habeas corpus by authorizing three-person military tribunals to review the status of each detainee being held as an enemy combatant. Under the MCA, the detainees were to be given a limited opportunity to appeal such determinations to the federal appeals court in Washington.

The majority justices said this process wasn't robust enough.

The "[Guantánamo] review process is, on its face, an inadequate substitute for habeas corpus," Justice Kennedy writes. "We do not hold that an adequate substitute must duplicate [the federal habeas law] in all respects."

Kennedy said the result is that the MCA brings about an unconstitutional suspension of the writ of habeas corpus.

Among the MCA's significant shortcomings, Kennedy said, was a restricted appeals process that allowed appeals court judges to examine the procedures used to identify enemy combatants but not to examine the quality and veracity of the evidence presented. Kennedy also said the MCA is constitutionally deficient because it does not empower federal judges to order a detainee's immediate release.

In a reply to the dissenting justices, Kennedy noted: "It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution."

He added that the existing cases lack any precise historical parallel. "Under these circumstances the lack of a precedent ... is no barrier to our holding," he said.

Kennedy's majority opinion was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. In addition to Justice Scalia, Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito dissented.

The decision marks the latest skirmish in a series of high-profile legal battles challenging controversial Bush administration tactics in the war on terror.

The MCA was passed by Congress in 2006 to overturn a Supreme Court decision earlier that year invalidating Bush administration efforts to sharply restrict legal protections at Guantánamo.

Much of the dispute is over whether detainees should have any opportunity to see classified information being used against them and to challenge the quality of that evidence by examining whether it was obtained through harsh and coercive interrogation techniques or even torture.

Administration lawyers have worked to sharply limit the detainee review process to avoid judicial scrutiny of intelligence information about the detainees and how it was obtained.

But the majority justices are pushing back. "The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Kennedy wrote. "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law."

The majority opinion seeks to reassure the president and other executive branch officials charged with protecting the country. "Our opinion does not undermine the Executive's powers as Commander in Chief," Kennedy wrote.

But he added, "Some of these [Guantánamo detainees] have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ [of habeas corpus] is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek."

Scalia's dissent featured unusually harsh language, even for him. "America is at war with radical Islamists," he wrote. "The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed."

Scalia noted that at least 30 released Guantánamo prisoners have returned to the battlefield.

"What drives today's decision is neither the meaning of the [Constitution's] Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy," he wrote.

"Today the Court warps our Constitution," Scalia wrote. "It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization."

The justice added: "Most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner."