WASHINGTON – The Supreme Court on Thursday rejected for the third time President Bush’s policy of holding foreign prisoners under exclusive control of the military at Guantanamo Bay, Cuba, ruling that the men have a right to seek their freedom before a federal judge.
The justices, in a 5-4 vote, said the U.S. Constitution enshrined the “privilege of habeas corpus” – or the right to go before a judge – as a safeguard of liberty. And that right extends even to foreigners who are captured in the war on terrorism, the court said, particularly when they have been held up to six years without charges.
“Within the Constitution’s separation of powers structures, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person,” Justice Anthony M. Kennedy said for the court. “The detainees in these cases are entitled to a prompt habeas corpus hearing.”
Dissenters in the ruling accused the majority of meddling in a war-time matter that is better left to the president and the military. “It will almost certainly cause more Americans to be killed,” Justice Antonin Scalia said of the decision.
Bush said he would abide by the decision but added, “It was a deeply divided court, and I strongly agree with those who dissented.”
Attorney General Michael Mukasey said the ruling would not affect the Guantanamo trials against enemy combatants.
About 270 men are still held at Guantanamo. Fewer than 20 are now facing trial before a military commission and about 60 more are in the pipeline.
Thursday’s ruling dealt only with the government’s power to detain prisoners indefinitely. And although the detainees won a major victory, the ruling does not necessarily mean that many or most of them will go free. The court also left several issues unresolved, making it likely that the issue 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 and rejecting a false choice between fighting terrorism and respecting habeas corpus.” He said the court had rejected Bush’s “attempt to create a legal black hole at Guantanamo.”
Sen. John McCain, the presumptive Republican candidate, said he had not had a chance to 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 Guantanamo.
The justices said the detainees are entitled to a lawyer to represent them, and they will get a chance to rebut the evidence against them. But the court stopped short of deciding the law on whether militants can be held for as long as the government believes is necessary.
“It bears repeating that our opinion does not address the content of the law that governs (their) detention,” Kennedy said of the prisoners. “That is a matter yet to be determined.”
Representatives of the detainees hailed the decision as a victory for the rule of the law. They said some of them were wrongly picked up by bounty hunters in Afghanistan or Pakistan and turned over to U.S. troops.
“After more than six long and painful years, justice for our family members is finally within reach,” said Khalid Al-Odah, whose son Fawzi was a lead plaintiff in the case. He said his son, a 31-year-old from Kuwait, had gone to Afghanistan in 2001 to teach and do charitable work, but he was captured by Pakistani bounty hunters after the attacks of Sept. 11, 2001.
Shortly after the attacks, the Bush administration decided to hold prisoners in the war on terrorism at a military base just off the U.S. mainland. They believed this would shield them and the prisoners from judges.
But that calculation went awry. The Supreme Court, though closely split, has concluded three times that the law and the authority of independent judges extends to Guantanamo Bay.
Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined with Kennedy in the majority.
In dissent, Chief Justice John G. Roberts Jr. faulted the majority for overreaching. Two years ago, Congress gave the detainees a right to appeal to the U.S. court of appeals in Washington, and he said the justices should have waited for that process to work.
“Today the court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants,” he wrote.
Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. agreed with his dissent.