06/29/07

Supreme Court justices will consider Guantanamo Bay detainees' challenges

By PETE YOST
Associated Press Writer

WASHINGTON (AP) -- The Bush administration is right back where it doesn't want to be, in front of a Supreme Court hostile to the government's handling of detainees at Guantanamo Bay.

In a surprise move, the court agreed Friday to hear the detainees case this fall, reversing a decision in April not to hear arguments over whether the prisoners can use federal courts to challenge their confinement.

The turnabout was announced without comment from justices who had twice before issued rulings critical of the way the Bush administration was handling detainees.

There was no indication why the justices changed course from three months ago, but lawyers for the prisoners pointed to intervening events as having changed the complexion of the long-running controversy.

A week ago, lawyers for the detainees filed a statement with the Supreme Court from a military officer who alleged U.S. military panels that classified detainees as enemy combatants for the past four years relied on vague and incomplete intelligence.

Under a law the Bush administration pushed through Congress last year, designating detainees as an enemy combatants strips them of any right to use the federal courts to challenge the legality of their detention.

Detainees challenged the law, and their appeal reached the Supreme Court earlier this year. On April 2, the court turned down the detainees' request to be heard.

At the time, Justices John Paul Stevens and Anthony Kennedy pointed to the "obvious importance" of the cases, but said it would be premature to intervene. Three members of the court said in April they wanted to step in immediately: Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter.

Five of the nine justices must agree to take a case that previously has been denied a hearing, according to an authoritative text on the Supreme Court. Court observers pointed to a 60-year-old case as the closest parallel to how the justices' handling of the detainees latest appeal.

Currently, 375 detainees are held at Guantanamo Bay.

Gordon Johndroe, a spokesman for the National Security Council, said that "we did not think that court review at this time was necessary, but we are confident in our legal position."
Combatant Status Review Tribunals were hastily organized in 2004 when the Supreme Court ruled against the Bush administration and gave detainees access to courts.

On Friday, Washington attorney David Remes said that "the corrupted CSRT proceedings and the very restrictive government view of what the detainees can do in the lower courts led the justices to conclude that they should take up these issues."

In June 2006, the justices ruled that a law passed in 2005 to limit detainees access to U.S. courts did not apply to pending cases.

In response, Congress passed the Military Commissions Act, taking away federal court jurisdiction to consider detainees' challenges to their confinement. In February, the U.S. Court of Appeals for the D.C. Circuit upheld the law. That is the decision the Supreme Court declined to review in April and revived on Friday.

After the April turndown, the detainees' legal team asked the court to preserve their cases for review at an undetermined later time. Dismissing the petitions would be "a profound deprivation" of the prisoners' right to speedy court review, the lawyers said.

The Bush administration's Supreme Court lawyer, Solicitor General Paul Clement, argued in court papers filed on June 19 that "nothing material has changed since the court" turned down the detainees in April.

A week later, the detainees' lawyers filed a sworn statement from Lt. Col. Stephen Abraham, an Army lawyer who said tribunal members felt pressured to find against the detainee. He said there was "intensive scrutiny" and when panelists found that a prisoner was not an enemy combatant they were ordered to reconvene to hear more evidence.
His affidavit was the first criticism by a member of the military panels of the process used to determine whether detainees will continue to be held.

"The processes the government put in place are a sham," Michael Ratner, president of the Center for Constitutional Rights, said after the Supreme Court's decision to take the detainees' cases. Ratner's group has been seeking court access for the detainees since 2002.

The operation of Guantanamo Bay has brought global criticism of the Bush administration and condemnation from Democrats on Capitol Hill.

The cases are Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196.