Court to Decide Detainees' Rights

Nov. 27, 2007— -- Supreme Court justices will hear a dispute next week over the rights of Guantanamo detainees that presents a fundamental question of prisoners' ability to be heard in court. The case arises as the justices increasingly exert their authority in terror-related clashes.

In recent years, the Supreme Court and President Bush have engaged in a contentious series of chess moves over the legal rights of foreigners held at Guantanamo and detainees elsewhere. Three times since 2004, the court ruled against Bush detention policies. In opinions and statements from the bench, the justices have shown particular impatience with administration efforts to keep detainees' cases from federal judges.

"The court doesn't like to be told, 'You don't have a role to play here,' " University of Chicago law professor Dennis Hutchinson says.

At the same time, Hutchinson and other legal experts observe, the justices have voiced concern over the administration's power to deal with terrorist threats. "I think that many of the justices have approached these cases pragmatically," Vanderbilt law professor Suzanna Sherry says. "There is no clear right answer. They are trying to balance the need to prevent terrorism with individual rights."

One signal of the justices' interest in monitoring terrorism cases was their handling of the dispute they will hear Dec. 5. In April, the justices declined to intervene in the case. On June 29, in an unprecedented order, they reconsidered and announced they would decide the Guantanamo prisoners' basic rights after all.

Justice John Paul Stevens, 87, a World War II veteran who earned the Bronze Star, has taken the lead on recent court actions against the administration. Stevens, appointed by President Gerald Ford in 1975, was a law clerk at the Supreme Court in the late 1940s as justices considered disputes lingering from World War II.

Sherry says the court seems keenly aware of its role now and some missteps during that era. She cites a case in 1944 in which the court upheld an order forcing Japanese-Americans to leave their homes in California and other Western states after Japan attacked Pearl Harbor. In that case, Korematsu v. United States, the court agreed with the U.S. government that the war justified targeting Americans based on their race. The ruling has been widely criticized in the decades since.

"The court as an institution learned something from the mistake it made," Sherry says.

The new dispute plays directly into tensions over judges' role in prisoners' cases. It tests whether foreigners at the U.S.-run naval base at Guantanamo Bay, Cuba, have a right to challenge their imprisonment by seeking a writ of habeas corpus.

For centuries in the Anglo-American tradition, prisoners could obtain the writ to assert they should not be locked up. A writ of habeas corpus (Latin for "you have the body") requires whoever holds the prisoner to allow him to make his case of unlawful confinement. The Constitution says a writ of habeas corpus, called the "Great Writ," may be suspended only "in cases of rebellion or invasion."

In October 2006, in response to a Supreme Court ruling and at the administration's urging, Congress passed a law saying no Guantanamo prisoner could seek a writ.

The U.S. Court of Appeals for the District of Columbia Circuit rejected a challenge to the law by two groups of detainees and ruled in February that the law properly stripped federal courts of authority over the detainees.

The court majority relied in part on a 1950 case for the principle that U.S. judges cannot hear claims outside the USA from foreign detainees. In the opinion by Judge Raymond Randolph, the appeals court narrowly interpreted a Supreme Court decision in 2004 that the Guantanamo detainees can get into U.S. court based on a long-standing federal law.

In dissent, Judge Judith Rogers said the majority was "ignoring the Supreme Court's well-considered" views from that 2004 case, Rasul v. Bush. Congress should have provided a sufficient alternative to a habeas proceeding, Rogers said, or established the grounds for suspending the writ.

When the detainees appealed, the high court, over the dissent of three of the nine justices, spurned the petitions.

However, two justices who joined in rejecting the appeals (Stevens and Anthony Kennedy) said the issues were important and signaled that they would watch developments. By late June, a majority had decided to intervene and announced the court would hear the twin cases of Boumediene v. Bush and Al Odah v. United States.

The court's decision came amid increasing public questions about the adequacy of military reviews set up for the prisoners and rising domestic and international pressure to close the Guantanamo prison.

In one of the paired cases, the lead challenger is Lakhdar Boumediene, an Algerian who was arrested in Bosnia in 2001 in connection with a suspected plot to attack the U.S. Embassy in Sarajevo. The other lead challenger is Khaled Al Odah, a Kuwaiti citizen who was captured in Pakistan in 2002.

U.S. Solicitor General Paul Clement stresses that the prisoners "were captured abroad in the course of an ongoing military conflict and … have at all times been detained outside the sovereign territory of the United States." He says they do not qualify for a writ of habeas corpus but even if they did, the combatant-status reviews are a sufficient substitute.

Seth Waxman, a former U.S. solicitor general in the Clinton administration who represents Boumediene and will argue for all the detainees involved, said the military screening is not enough.

"Habeas is a judicial remedy; it cannot be replaced by a process that … is ultimately controlled by the jailer," Waxman said, noting that the reviews are conducted by military officials, not independent judges. He said the process does not allow prisoners to have lawyers or to present their own evidence.

The cases have drawn extensive "friend of the court" briefs since they first came to the justices last spring, overwhelmingly on the side of the detainees. Among them was one from former federal judges, diplomats and others, including Karen Korematsu-Haigh, daughter of Fred Korematsu, whose challenge to the orders forcing Japanese-Americans from their homes was spurned in 1944.

She signed a brief that said, "The Constitution entrusts to the courts the ultimate protection of individual liberty — especially in times of national anxiety and stress."