Supreme Court reverses itself on detainee appeal

WASHINGTON – The Supreme Court reversed itself Friday and agreed to consider whether detainees at Guantanamo Bay have been unfairly barred from the federal courts by the Bush administration and Congress, a move that may finally determine legal rights for foreign-born terrorism suspects.

The case, which could become one of the most important of the court’s next term, will address whether subjecting the detainees to military commissions instead of allowing them access to federal courts violates the Constitution. In April, the court had decided not to hear an appeal from the detainees.

Friday’s decision to change course and hear the case was so unusual that lawyers and court experts went to the archives to try to find the last time it had happened. The only consensus was that it had been decades.

“The Supreme Court is going to decide the simple question: Does the Constitution protect the detainees?” said Georgetown University law professor Neal Katyal, who successfully argued the detainee case the court decided just a year ago. In that case, the justices said President Bush did not have authority to set up the military tribunals the administration thought should hear the cases against the detainees.

In April, three justices – David Souter, Ruth Bader Ginsburg and Stephen Breyer – said they were eager to hear the appeals, which presented questions that “deserve this court’s immediate attention.” But it takes four justices to agree to take a case.

Justices John Paul Stevens and Anthony Kennedy said at the time they would continue to monitor the legal proceedings involving the detainees. It takes five votes to re-hear a denial, so perhaps the two justices concluded they’ve seen enough. The court’s order is silent on which justices agreed to hear the case.

The Bush administration had urged the court not to take the appeals. “The grant of a petition for rehearing from a denial of certiorari is an extraordinary remedy, warranted only where there have been ‘intervening circumstances of a substantial or controlling effect’ or ‘other substantial grounds not previously presented,’ ” Solicitor General Paul Clement told the court earlier this month, adding that petitioners had shown neither.

David Remes, a lawyer for some of the detainees who brought the case, said the court didn’t have to make the decision to take the case now, “so what obviously happened is the justices decided to confront the issue sooner rather than later.”

The court’s action comes as both Congress and the White House are looking for ways to close the military prison at Guantanamo Bay, Cuba, and transfer the approximately 370 prisoners there to military prisons in the U.S.

Defense Secretary Robert Gates reiterated Friday that he, Bush, and members of Congress all seek to close the military detention facility, which was opened in January 2002. But he said legal obstacles stand in the way.