WASHINGTON -- In a surprise move, the Supreme Court agreed yesterday to take up the cases of prisoners at Guantanamo Bay, Cuba, and to decide whether they have been wrongly held for years without a fair chance to plead their innocence.
In a brief order before adjourning for the summer, the justices announced that they would hear an appeal they had turned down in early April. The case hinges on whether "foreign citizens imprisoned indefinitely" by the U.S. military could go to court and, if so, whether a judge could free them from "unlawful confinement."
The move itself was quite unusual. Court personnel said it had been 60 years since the justices dismissed an appeal petition and then voted to reverse themselves and hear the claim after all.
The switch may well reflect frustration within the court's liberal-to-moderate wing over the Bush administration's handling of the Guantanamo issue, say civil-liberties lawyers who have been battling with the government.
Three years ago, the court ruled that the hundreds of prisoners held there were entitled to a hearing before a neutral judge to challenge the government's basis for holding them. Since then, President Bush and the Republican-controlled Congress, in a rebuke to the high court, enacted a law to strip these "unlawful enemy combatants" of their right to be heard in the federal courts.
Yesterday's order from the court may signal that a majority of the justices are prepared to rule that the Constitution's guarantee of the right to habeas corpus gives the Guantanamo detainees a right to go court and to contest the government's reason for holding them.
"The Supreme Court, along with the rest of the nation, should be sick and tired of what it's seeing in Guantanamo," said Matthew MacLean, an attorney for four Kuwaiti detainees at the U.S. naval base prison in southern Cuba. "It's anybody's guess what changed the Supreme Court's mind, but I hope the justices are seeing the discomfort that so many people in this country and abroad have with Guantanamo."
White House National Security Council spokesman Gordon Johndroe said: "We did not think that court review at this time was necessary, but we are confident in our legal position."
It is also possible the administration or congressional Democrats may close the prison before the court acts.
Despite the years of legal skirmishing, little progress has been made in establishing a system for deciding who is a truly dangerous foreign fighter who should be held as a war prisoner.
Bush administration lawyers have not budged for five years. They say foreign fighters who are not part of a regular army have no rights in American law and are not entitled to the protection of the Geneva Conventions.
However, in response to the high court's ruling in 2004, the Pentagon did agree to review the status of each prisoner held in Guantanamo. Known as a Combatant Status Review Tribunal, it consists of three military officers who review the evidence. The detainee does not have a lawyer and can see only evidence that is "reasonably available" to the officers.
Last week, an Army lawyer who participated in several hearings questioned their fairness. Lt. Col. Stephen Abraham filed a sworn statement in one of the appeals before the Supreme Court and said officers were pressured to rule in favor of keeping the detainees in prison.
"I certainly think the Abraham declaration proves what everyone has long surmised, that the CSRT process is just a kangaroo court that doesn't provide any meaningful review" of whether a detainee at Guantanamo is properly held as an enemy combatant, said David Cynamon, the lead attorney in Al-Odah v. Bush. "It seems to be the straw that broke the camel's back." His client, Fawzi Al-Odah, is a Kuwaiti who has been held for six years without any charges filed against him.
The other case to be heard by the court involves six Algerian men who lived in Bosnia in the 1990s. They were arrested by Bosnian police in 2001 on the suspicion they were involved in terrorism, but the next year the Supreme Court of Bosnia and Herzegovina ordered them released for lack of evidence. They were immediately taken into custody by the U.S. military, shackled and put under hoods and shipped to Guantanamo, where they have been held since.
David G. Savage and Carol J. Williams write for the Los Angeles Times.