A Third Rebuke to Bush on Guantánamo Bay

The Supreme Court decision will mean a flood of new cases in federal court.


Supreme Court Justice Anthony Kennedy.

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Today's U.S. Supreme Court ruling allowing detainees at Guantánamo Bay to challenge their imprisonment in federal court was a clear rebuke to the Bush administration—and the third against its approach toward Guantánamo detainees. But what implications the case has for the future of the island prison and the pending trials against some of the detainees are hardly clear.

In a 5-to-4 majority, the Supreme Court held that given the absence of a formal revocation of habeas protections, the detainees had a right to those full protections guaranteed by the Constitution. "The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Justice Anthony Kennedy wrote for the majority.

By extending habeas protections to noncitizens held under U.S. control, the Supreme Court opened the door for courts to decide whether their detention was ultimately constitutional.

In the short term, the decision will mean a flood of new cases in the federal courts. But the ruling could also have implications for the pending military commission trials, including trials for those charged with aiding the terrorist attacks of Sept. 11, 2001. In opening up the avenues for Guantánamo detainees to challenge their imprisonment, the ruling allows even those charged with crimes in another venue to raise the broader constitutional challenges they have made about their detention, detainee lawyers say.

The opinion was met with a vociferous dissent in which Chief Justice John Roberts wrote that "this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants."

The Supreme Court first ruled in 2004 that some constitutional protections apply to Guantánamo Bay detainees, even though the United States is not the ultimate sovereign of the territory. By 2006, Congress had passed the Military Commissions Act, which barred detainees from filing habeas petitions for their release. In effect, detainees could question not their imprisonment but only the government's determination of their status as an "enemy combatant." And they could appeal only to a single forum—the conservative U.S. Court of Appeals for the D.C. Circuit.

In today's ruling, the Supreme Court held that this narrow review did not meet the constitutional standard required by habeas. In particular, the court noted that this process unfairly prevented detainees from introducing new evidence prohibited in the original proceedings.

Wrote Kennedy: "Even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal's findings of fact. . . . And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore."

The cases, the majority acknowledged, lacked any "precise historical parallel," but the gravity of the legal issues and "the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional," Kennedy wrote.

The ruling, however, did not make any broad statements about the constitutionality of the government's detention programs elsewhere. And it cautioned the federal courts to protect national security concerns in devising habeas procedures.

But before any decisions are made, there are myriad legal questions for the district court judges to sort out. First and foremost, judges would need to figure out the procedures and scope of the habeas proceedings. This is something that Roberts warned could actually prolong the process further. Figuring out how to protect classified information could also lead to litigation. Says Robert Chesney, a national security law professor at Wake Forest University, "There are a million unanswered questions here."