Terror suspects' rights upheld

The Baltimore Sun

WASHINGTON - The Supreme Court sent a message to the White House yesterday, saying clearly that the Bush administration no longer controls the fate of the nearly 300 detainees held at the U.S. naval base at Guantanamo Bay, Cuba.

In a 5-4 decision, the court essentially gave the nation's federal courts authority over the detainees, holding that the inmates can have judges review the government's rationale for keeping them locked up without charges.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Justice Anthony M. Kennedy wrote in the majority opinion.

For most of the detainees in the U.S.-led war on terrorism, it will be the first time that an independent body has looked into the circumstances of their detention. Lawyers for the prisoners believe that many of them will be quickly freed and returned to their native countries or other places.

"A lot of these cases are just going to be gone," said Michael Ratner, president of the Center for Constitutional Rights, a public interest law firm that represented 37 detainees before the Supreme Court.

The opinion's transfer of power to civilian courts angered the justices who dissented from the opinion, as well as outside critics.

In his dissent, Justice Antonin Scalia suggested that the decision "will almost certainly cause more Americans to be killed."

President Bush, in Italy, said that he did not agree with the decision but that the government would abide by it while studying legislative options.

"The court has conferred upon civilian judges the right to make military decisions," said Sen. Lindsey Graham, a South Carolina Republican. "These judges have virtually no training in military matters. Yet civilian judges, in some of the most liberal district courts in the country, will have an opportunity to determine who is a threat to the United States."

In a sense, the Supreme Court told the Bush administration that its time had run out. For more than four years, government lawyers have struggled to satisfy the court that some sort of process was in place at Guantanamo to separate detainees who pose a threat to the United States from those who might have been innocently caught up in the dragnet cast after the Sept. 11 attacks.

Yesterday marked the third time the justices have rejected those efforts as insufficient. And this time, it was clear from the tenor of the decision that the justices' patience had been exhausted.

"Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention," Kennedy wrote.

The bulk of the detainees remaining at Guantanamo - about 260 - will have their cases heard individually by federal judges in Washington in what is known as a habeas corpus proceeding. In these cases, the U.S. government will have the burden of showing why a prisoner should continue to be held without charges.

"We think it's unlikely in most of the cases the government will be able to do that," Ratner said.

Compounding the problem will be that any evidence obtained through torture or coercion at Guantanamo is likely to be inadmissible in federal court. The detainees will have the opportunity to offer exculpatory evidence.

The judge can order that the detainee continue in detention without a charge, that the government charge the detainee or release him, or that he be released and transferred to another country. The judge will have the authority to block a transfer of a detainee by the Pentagon on the grounds that the prisoner might be re-incarcerated or tortured if shipped home, and perhaps order transfer to a different country.

An attorney for Majid Khan, a Pakistani national who graduated in 1999 from Owings Mills High School, said the decision could mean that the U.S. District Court for the District of Columbia will hear Khan's challenge to his detention this summer.

The high court decision does not affect the small group of detainees now facing trials before military tribunals at Guantanamo.

At its heart, the 70-page ruling says that the detainees have the same rights as anyone else in custody in the United States to contest detention before a judge. Kennedy wrote that the system the Bush administration has put in place to classify detainees as enemy combatants and review those decisions is not an adequate substitute. The administration had argued initially that the detainees have no rights under U.S. law. But it also contended that its classification and review process was sufficient.

Chief Justice John G. Roberts Jr., writing in a dissent, criticized the majority for striking down what he called "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

Justices Samuel A. Alito Jr. and Clarence Thomas also dissented.

Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens - the court's more liberal members - joined Kennedy in the majority.

Souter wrote a separate opinion in which he emphasized the length of the detentions. "A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments; some of the prisoners represented here today having been locked up for six years," Souter wrote. "Hence the hollow ring when the dissenters suggest that the court is somehow precipitating the judiciary into reviewing claims that the military ... could handle within some reasonable period of time."

Most of the habeas corpus actions have been filed in federal court in Washington, and the chief judge, Royce C. Lamberth, said he would begin making preparations for the judges to hear the politically sensitive cases.

John Oliphant writes for the Chicago Tribune. The Associated Press contributed to this article.

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