Justices heard Gitmo detainees' plea
WASHINGTON -- Justice Anthony Kennedy, the pivotal vote in so many controversial Supreme Court cases, was again the focus of both sides Wednesday in the long-running legal fight over the rights of foreign terrorism suspects at Guantanamo Bay.
The military is holding 305 men at the U.S. naval base in Cuba, and many have been there for nearly six years.
In his questions, Kennedy appeared to have resolved the Guantanamo detainees have the right to challenge their confinement in U.S. courts. His focus, in queries to both sides, was on how that should be accomplished and whether the limited court review created by the Bush administration and Congress in response to earlier Supreme Court rulings is good enough.
The court's resolution of this matter, expected in a decision in the spring, could determine whether the detainees receive prompt hearings that might result in freedom for some or face many more months, even years, of legal proceedings and imprisonment.
Kennedy did not tip his hand about whether he thinks review of a detainee's status by a panel of military officers and a federal appeals court is sufficient.
But Justice Stephen Breyer tried to capture the inadequacy of the review process when he spoke of a detainee who, after six years in jail, may want to argue that the Constitution says he must be charged or released. "I don't see anything," Breyer said, "that permits me to make that argument. So I'm asking you: Where can you make that argument?"
Solicitor General Paul Clement, the Bush administration's top Supreme Court lawyer, replied, "I'm not sure that he could make that argument."
Breyer said: "Exactly."
The administration opened the detention facility at Guantanamo Bay shortly after the Sept. 11, 2001, terrorist attacks to hold enemy combatants, people suspected of ties to al-Qaida or the Taliban.
The court has twice ruled that people held there without charges can go into civilian courts to seek their freedom. Each time, the administration and Congress, then controlled by Republicans, has changed the law to try to close the courthouse doors to the detainees.
Two dozen protesters, some in prison-like orange jumpsuits, chanted and waved signs outside the court. "Restore habeas corpus!" they chanted, referring to the right to court review of the legality of detention.
Clement, in his written argument, said foreigners captured and held outside the United States "have no constitutional rights to petition our courts for a writ of habeas corpus."
The government lawyer spent most of his time Wednesday telling the justices that if they determine that he is wrong on that constitutional question, they should not rule on whether procedures in place are adequate.
Instead, he said the court should return the issue to the U.S. Court of Appeals for the District of Columbia Circuit, where the detainees' status as enemy combatants is undergoing a highly restrictive form of review. Compared with protections historically afforded foreigners held by the United States somewhere other than on U.S. soil, the review is a "remarkable, remarkable liberalization," Clement said.
Richard Samp, who wrote a brief supporting the administration for the conservative Washington Legal Foundation, said such an outcome is about the best the government can expect. "Time is the government's friend in this case," Samp said.
Seth Waxman, the detainees' lawyer, said that review is "structurally flawed" and pleaded for prompt hearings for his clients after their lengthy detention.
Detainees can't introduce evidence of their innocence and have no right to a lawyer, Waxman said. The Washington appeals court "has already said it will not hear any new evidence," he said. The court also will presume that evidence about the detainees that was considered, unchallenged, by panels of military officers is correct, Waxman said.
Chief Justice John Roberts and Justice Antonin Scalia appeared most interested in pressing Waxman on whether the detainees have any right to a court hearing.
"Show me one case" down through the centuries where circumstances similar to those at Guantanamo Bay entitled an alien to challenge his detention in civilian courts, said Scalia.
Kennedy, however, seemed to answer that question in a concurring opinion in Rasul v. Bush, the 2004 case that was the court's first foray into the administration's detention policies.
"Guantanamo Bay is in every practical respect a United States territory," Kennedy said in the earlier ruling.
The justices decided to review the issue in June, after having turned down the detainees' appeal in April. They provided no explanation, but their action followed a declaration from a military officer who criticized combatant status review tribunals.
The officer, Lt. Col. Stephen Abraham, was at the court Wednesday. "To those who have defended the tribunals, suggesting that it is an adequate substitute for habeas corpus, I would say just one thing to them: 'You did not sit on those tribunals. I did,' " Abraham said.
The United States has no plans to put most of those held at Guantanamo on trial. Just three detainees face charges under the Military Commissions Act, and the military has said it could prosecute as many as 80.
The consolidated cases are Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196.
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Associated Press writers Natasha Metzler and Pete Yost contributed to this report.
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