Constitution applies to detainees, justices say. It’s third Supreme Court rebuke of Bush’s policy

Times Staff Writer

The Supreme Court on Thursday rejected for the third time President Bush’s policy of holding foreign prisoners under exclusive control of the military at Guantanamo Bay, Cuba, ruling that the men have a right to seek their freedom before a federal judge.

The justices said the Constitution from the beginning enshrined the “privilege of habeas corpus” -- or the right to go before a judge -- as one of the safeguards of liberty. And that right extends even to foreigners captured in the war on terrorism, the high court said, particularly when they have been held for as long as six years without charges.

Justice Anthony M. Kennedy wrote for the court majority: “The detainees in these cases are entitled to a prompt habeas corpus hearing. . . . Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the executive to imprison a person.”


The court was narrowly split, 5 to 4. The dissenters accused the majority of meddling in a wartime matter better left to the president and the military.

The decision “will almost certainly cause more Americans to be killed,” Justice Antonin Scalia wrote in a dissent.

President Bush said he would abide by the decision but added: “It was a deeply divided court, and I strongly agree with those who dissented.”

About 270 men are still held at Guantanamo. Fewer than 20 are now facing trial before a military commission, and about 60 are in the pipeline.

Thursday’s ruling dealt only with the government’s power to detain prisoners indefinitely. And though the detainees won a major victory, the ruling does not necessarily mean that many or most of them will go free. The court also left several issues unresolved, making it likely that the controversy will continue into the next presidential administration.

Sen. Barack Obama, the presumptive Democratic candidate for president, praised the ruling: “This is an important step toward reestablishing our credibility as a nation committed to the rule of law and rejecting a false choice between fighting terrorism and respecting habeas corpus.” He said the court had rejected Bush’s “attempt to create a legal black hole at Guantanamo.”


Sen. John McCain, the presumptive GOP candidate, said that he had not had a chance to read the opinion but that he questioned its reasoning. “These are unlawful combatants. They are not American citizens,” he said. He added, however, that he favored closing the prison at Guantanamo.

The justices said the detainees are entitled to legal representation and a chance to rebut the evidence against them. But the court stopped short of deciding whether terrorism suspects can be held for as long as the government believes is necessary.

“It bears repeating that our opinion does not address the content of the law that governs [their] detention,” Kennedy said. “That is a matter yet to be determined.”

That issue figures to loom large in the years ahead. If Bush or his successor moves to shut down the prison at Guantanamo, the military will have to decide what to do with the prisoners, many of whom are seen as security risks who should not be released and sent home.

If the government wants to hold them, however, it will have to justify that continued detention before a federal judge. Eventually, the Supreme Court -- or perhaps Congress -- will have to decide whether American law permits the government to imprison indefinitely foreigners who are not convicted criminals but who are deemed too dangerous to free.

Representatives of the detainees hailed the decision Thursday as a victory for the rule of law. They said some of the detainees were wrongly picked up by bounty hunters in Afghanistan or Pakistan and turned over to U.S. troops.


“After more than six long and painful years, justice for our family members is finally within reach,” said Khalid Odah, whose son Fawzi was a lead plaintiff in the case. He said that his son, a 31-year-old from Kuwait, had gone to Afghanistan in 2001 to teach and do charitable work but was captured by Pakistani bounty hunters after the attacks of Sept. 11, 2001.

His attorney in Washington, David Cynamon, said he has been fighting to get the Kuwaitis a fair hearing before an independent judge. He called the high court’s ruling “a powerful repudiation of the Bush administration’s efforts to undermine the Constitution.”

Shortly after the Sept. 11 attacks, the Bush administration decided to hold prisoners in the war on terrorism at a military base off the U.S. mainland. Officials believed this would shield them and the prisoners from judges.

But that calculation went awry. The Supreme Court, though closely split, has concluded three times now that the law and the authority of independent judges extend to Guantanamo Bay.

In 2004, the justices ruled in a 6-3 decision that existing laws gave the detainees a right to a hearing and a chance to appeal to a federal court.

In response, the Bush administration gave the detainees a closed hearing before three military officers. The administration also moved to try some of the detainees as war criminals under rules devised by the Pentagon. If found guilty, the prisoners could be executed.


Two years ago, the high court struck down these proposed military trials as flawed and illegal.

After that setback, the administration went to Congress, still under GOP control, and won a law authorizing trials through military commissions. The law also stripped all the foreign “enemy combatants” of their right to go to court via a writ of habeas corpus.

In Thursday’s case, Boumediene vs. Bush, the court struck down that latter provision. The Constitution says: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

The reach of the right to habeas corpus has remained unclear. Thursday’s ruling did not finally answer that question, but the court concluded that Congress did not have the power to take away this right from people who are held for years by U.S. officials with no real chance to plead their innocence.

Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined with Kennedy in the majority.

In dissent, Chief Justice John G. Roberts Jr. faulted the majority as overreaching. Two years ago, Congress gave the detainees a right to appeal to the U.S. Court of Appeals in Washington, and he said the justices should have waited for that process to work.


“Today the court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants,” he wrote. “The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date.”

Roberts asserted that the court’s “ambitious opinion” meant Americans “today lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges.”

Justices Scalia, Clarence Thomas and Samuel A. Alito Jr. agreed with his dissent.

In a separate dissent, Scalia faulted the majority for extending “a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war. . . . The nation will live to regret what the court has done today.” Roberts, Thomas and Alito joined his dissent as well.

In a related pair of rulings Thursday, the court said unanimously that American citizens who commit crimes in Iraq can be turned over to the Iraqis for trial and that they do not have a right to seek their freedom through a U.S. court. The cases were Munaf vs. Geren and Geren vs. Omar.