Justices open US courts to detainees

Deal setback to Bush; influx of cases expected

WASHINGTON - The US Supreme Court ruled yesterday that detainees at Guantanamo Bay have a right under the US Constitution to challenge their detention in US civilian courts, dealing perhaps the final blow to President Bush's policy of holding terrorism suspects indefinitely without charge.

The 5-to-4 court ruling is expected to immediately trigger a flood of hearings in US federal court on behalf of the approximately 260 men who have been detained for years without trial or formal charges. Legal specialists said the government must now present evidence against the men in a US court or release them - a situation the Bush administration and its allies in Congress have fought bitterly to prevent in the name of national security.

In a passionately written opinion by Justice Anthony M. Kennedy, the court's majority took aim at Bush's long-held assertion that, as US commander in chief during wartime, he has broad powers to detain terrorist suspects as he sees fit in order to protect the nation.

Rejecting that theory, Kennedy wrote that the framers of the Constitution saw the need "to guard against the abuse of monarchical power" and, therefore, gave individuals the right to contest their detentions, even during "extraordinary" times.

Siding with the majority were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, Stephen G. Breyer, and Kennedy. The dissenters were Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia, and Clarence Thomas.

Traveling in Italy yesterday, Bush said he "will abide by the court's decision," but added, "That doesn't mean I have to agree with it."

Bush sided with the four dissenting justices, who wrote that the ruling raises "serious concerns about US national security." He said his advisers are studying the ruling "to determine whether or not additional legislation might be appropriate."

Attorney General Michael Mukasey said the ruling would not affect the Guantanamo trials against enemy combatants, the Associated Press reported. "I think it bears emphasis that the court's decision does not concern military commission trials, which will continue to proceed," Mukasey said in Tokyo today. "Instead it addresses the procedures that the Congress and the president put in place to permit enemy combatants to challenge their detention."

Many legal specialists said the language of yesterday's ruling left Bush with few options and had a finality that two previous Supreme Court decisions on the issue lacked.

High court rulings in 2004 and 2006 that affirmed a detainee's right to a fair hearing cited federal statutes that the Republican-majority Congress then amended. But yesterday's decision in favor of Lakhdar Boumediene of Bosnia and Fawzi al-Odah of Kuwait cited the Constitution itself, establishing for the first time that noncitizens held at Guantanamo Bay have fundamental rights, even though they are not being held on US soil.

David Cynamon, lead counsel for Odah, called the ruling "a complete victory."

"It is a powerful repudiation of the Bush administration's efforts to undermine the Constitution and create the legal black hole that is Guantanamo," he said in a statement.

Michael Ratner, president of the Center for Constitutional Rights, a New York-based organization that has arranged free defense counsel for the detainees, said he expects to see a large number of them released in the coming months - through federal court orders or the US military's desire to transfer the cases to the detainees' home countries before US officials are forced to present evidence in court.

"A lot of these cases are just going to be gone," Ratner said. "They are not going to have the evidence, and much of the evidence is going to be based on torture or coercion [which is inadmissible in US courts]. It may even mean a death knell of Guantanamo, in terms of holding 260 people without hearings."

Some detainees say their American captors have used sleep deprivation, simulated drowning, and prolonged exposure to heat and cold to get information. Government officials have acknowledged the use of aggressive interrogation techniques but insist they were legal.

Since detainees were first brought to Guantanamo Bay in January 2002, the Bush administration has said they are not protected by the Constitution, because they are foreigners held outside the United States.

But defense lawyers argued that anyone being held by the United States has the right to challenge his or her detention in court - a bedrock principle known as habeas corpus.

Odah's lawyers filed petitions on his behalf in US federal court in the spring of 2002. Two years later, defense lawyers for other Guantanamo Bay detainees won a partial victory when the Supreme Court ruled that federal laws give them the right to know why they are being held and to challenge their detention before a "neutral decision maker."

In response, the Pentagon hastily set up hearings known as Combatant Status Review Tribunals for all detainees. The tribunals ruled in the vast majority of cases that the detainees should remain in custody.

But defense lawyers argued that the military-run tribunals were no substitute for a federal court hearing, because detainees were barred from having lawyers present and were denied the right to know all of the accusations against them. Yesterday, the Supreme Court said the tribunals are an "inadequate" substitute for habeas hearings in federal court.

The ruling does not directly address the cases of 20 detainees who face formal criminal charges validated by a separate system of military commissions. But Matthew MacLean, a lawyer for Odah, said those detainees can now argue that the military commissions are also illegal and deny them due process because that system's rules allows the use of hearsay evidence and evidence obtained through coercion.

Yesterday's ruling also struck down a portion of the Military Commissions Act, which Congress passed in 2006. The act approved Bush's system of military commissions, but stripped all detainees of the right to appear in federal court.

The high court's decision underscored its sharp divisions over how to handle terrorism suspects in American custody. In a dissenting opinion, Scalia argued that the Constitution should not cover foreigners held overseas.

"Today the Court warps our Constitution," he wrote. "Most tragically, it sets our military commanders the impossible task of proving to a civilian court. . . . that evidence supports the confinement of each and every enemy prisoner."

The two presidential candidates also showed deep divisions over the ruling. Yesterday, Senator John McCain told reporters in Boston that he is concerned that the ruling goes too far, giving foreigners the same rights as Americans. McCain, who backs Bush's justice system for the detainees, said it allowed the US military to bring terrorists to trial even if the evidence against them was gathered in a war zone under lower standards than those required by US courts.

McCain, who was a prisoner of war in Vietnam, has advocated closing Guantanamo Bay but says he will continue the military commissions process inside the United States. By contrast, Senator Barack Obama heralded the ruling, saying it protects our "core values."

Obama, who taught constitutional law at the University of Chicago, opposed the Bush administration's tribunal system, saying that the right to challenge one's detention is fundamental to the rule of law. Obama said he would close Guantanamo Bay and try detainees in federal courts or under military courts-martial.

But for now, legal specialists say the Bush administration will almost certainly be forced to produce evidence in US courts that the detainees in custody are enemy soldiers or terrorists who committed crimes.

"It's a very big deal," said Eugene Fidell, president of the National Institute of Military Justice, a nonpartisan group of military law scholars.