Supreme court rules in detainees' favor; judges to control fate of enemy combatants

WASHINGTON — The Supreme Court sent an urgent message to the White House on Thursday, saying clearly that the Bush administration no longer controls the fate of the almost 300 prisoners held at the U.S. naval base in Guantánamo Bay, Cuba.

In a 5-4 decision, the court essentially gave the nation's federal courts supervisory authority over those 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 Kennedy wrote for the majority.

Lawyers for the prisoners think many will be quickly freed and returned to their native countries or perhaps other places.

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

The opinion's transfer of power to civilian courts enraged the justices who dissented from the opinion and outside critics. "The court has conferred upon civilian judges the right to make military decisions," said Sen. Lindsay Graham, R-S.C. "These judges have virtually no training in military matters. Yet civilian judges ... will have an opportunity to determine who is a threat to the United States."

In his dissent, Justice Antonin Scalia suggested the decision "will almost certainly cause more Americans to be killed" because, he said, it will lead to the release of hostile terrorists.

The court rejected Bush administration arguments that Guantánamo's location put it outside U.S. constitutional protections.

"The United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory," Kennedy noted.

Kennedy and the four other justices further concluded that the detainees deserved full habeas corpus access to federal courts, despite congressional efforts to curtail it.

In a sense, the court told the 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 in Guantánamo to separate those detainees who may pose a threat to the United States from those who were innocently caught up in the dragnet cast after the Sept. 11, 2001, attacks.

Thursday marked the third time the justices have rejected those efforts as being insufficient. And this time, there won't be a chance for another shot. 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 Guantánamo — about 260 — will have their cases heard individually by U.S. District Court judges in Washington in what's known as a habeas corpus proceeding. In these cases, the 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 Guantánamo is likely to be inadmissible in federal court. The inmate will also have the opportunity to offer exculpatory evidence.

The judge can then order his continued detention without a charge being filed against him; that the government charge the detainee or release him; or that he be released and transferred to another country.

The judge will also have the authority to block a transfer of a prisoner by the Pentagon on the grounds that he may be re-incarcerated or tortured if shipped to his home country, and perhaps order him transferred to a different country.

One of the next big questions — or embarrassments — could focus on what happens to detainees who win their freedom at habeas corpus hearings but have no place to go.

"The brutally frank answer is that we're stuck," Defense Secretary Robert Gates said recently. "And we're stuck in several ways: Either their home government won't accept them or we are concerned that the home government will let them loose once we return them home."

The ruling does not affect the small group of detainees who are facing trials through the controversial military-tribunal system at Guantánamo.

Some outside critics supported the ruling. Jonathan Turley, a law professor at George Washington University, said that "the impact of this decision is enormous for the legal system. We have lost so much credibility internationally."

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

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

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined with Kennedy in the majority.

Scalia, Clarence Thomas and Samuel Alito joined Chief Justice John Roberts in dissenting.

The court left several issues unresolved, making it likely the matter will continue into the next presidential administration.

Sen. Barack Obama, the presumptive Democratic candidate for president, praised the ruling. "This is an important step toward re-establishing our credibility as a nation committed to the rule of law." He said the court had rejected Bush's "attempt to create a legal black hole at Guantánamo."

Sen. John McCain, the presumptive Republican candidate, said he had not read the opinion but questioned its reasoning. "These are unlawful combatants. They are not American citizens," he said. He added, however, that he favored closing the prison at Guantánamo.

In a related pair of rulings Thursday, the court said unanimously that U.S. citizens who commit crimes in Iraq can be turned over to the Iraqis for trial, and they do not have a right to seek their freedom through a U.S. court.

Material from the Los Angeles Times is included in this report.