Supreme Court declines to enter fray on detainee trials

Monday's action helps to clear the way for the next military trials against terror suspects at Guantánamo Bay.

from the May 1, 2007 edition

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In his brief to the court, Mr. Katyal added, "If this court were to deny [the appeal], trials at Guantánamo would begin against the backdrop of no constitutional rights at all."

US Solicitor General Paul Clement says in his brief to the court that Congress has struck the proper balance between legal protections enjoyed by the accused, the availability of judicial review, and executive power to wage the war on terror. "No other captured enemy combatants in the history of this country, or any other, have enjoyed such privileges," he writes.

The action by the high court comes as the Justice Department is seeking the dismissal under the MCA of hundreds of pending habeas corpus appeals filed by lawyers on behalf of Guantánamo detainees. As part of that effort, the Justice Department is trying to limit the ability of the lawyers to have continuing contact with Guantánamo detainees. Lawyers for the detainees are countering with a flurry of creative legal maneuvers designed to entice the Supreme Court into the battle. So far, the court has declined repeated invitations.

At least two bills introduced in Congress would amend the MCA to allow detainees a right to file habeas corpus petitions challenging the legality of their detentions. They would also beef up legal protections for those being tried by the commissions.

In February, the US court of appeals in Washington, D.C., upheld the constitutionality of the MCA against a challenge by a group of detainees. On April 2, the Supreme Court declined to hear that case. Three justices, Stephen Breyer, David Souter, and Ruth Bader Ginsburg, dissented from the action. They said the issue deserved the court's immediate attention.

But two justices, John Paul Stevens and Anthony Kennedy, said the detainees must exhaust judicial remedies available to them before bringing their case to the high court. Congress established a streamlined system for judicial review of detainee cases at Guantánamo in lieu of habeas review, but none of the detainees has yet undergone that judicial process.

Justices Kennedy and Stevens said the detainees could challenge the streamlined process once they'd tested its provisions.

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