Guantánamo detainees win right to court review

The US Supreme Court ruled 5 to 4 Thursday that those held in Guantánamo can challenge their detention.

from the June 13, 2008 edition

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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."

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