- The Washington Times - Monday, April 2, 2007

The Supreme Court yesterday declined to let Guantanamo Bay detainees challenge the law that bars them from bringing habeas-corpus petitions asking federal judges to review their detention in the war on terrorism.

By a 6-3 majority, the justices left standing a lower-court ruling that federal judges had no jurisdiction in the matter. Because four justices must agree before the court will hear a case, the ruling is a temporary victory for President Bush’s broad authority to hold without charges and eventually bring to trial 385 Guantanamo detainees.

The case involved separate appeals, one by 39 prisoners who have been at Guantanamo for five years without charges, and another involving six Algerians captured in Bosnia and held at Guantanamo since January 2002.

In February, a panel of the U.S. Court of Appeals for the D.C. Circuit voted 2-1 to block prisoners at Guantanamo from challenging their detention in District Courts. Judges A. Raymond Randolph and David B. Sentelle said Congress had stripped the detainees of their right to seek a hearing through a writ of habeas corpus. The D.C. court denied the group of 39 in a case later joined by the six Algerians.

In the Supreme Court ruling, Justices John Paul Stevens and Anthony M. Kennedy, writing for the majority, denied the appeals “despite the obvious importance of the issues raised in these cases.”

The Military Commissions Act of 2006 said no court, justice or judge has jurisdiction to consider an application for a writ of habeas corpus by or on behalf of an alien detained as an enemy combatant. Guantanamo was opened in January 2002 to hold terrorism suspects. Of the 385 detainees, 10 have been charged.

The justices said they were “persuaded that traditional rules governing our decision of constitutional questions … and our practice of requiring the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus … make it appropriate to deny these petitions at this time.”

They said the detainees should go before military tribunals first and seek a Supreme Court review later if they can show the “government has unreasonably delayed proceedings” under the Detainee Treatment Act of 2005. They said “alternative means exist” for the high court to consider its jurisdiction in a future challenge.

“Were the government to take additional steps to prejudice the position of petitioners in seeking review in this court, courts of competent jurisdiction, including this court, should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised,” they said.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. also voted to reject the appeals, but did so without comment.

Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter dissented.

Writing for the minority, Justice Breyer said the detainees had raised “an important question: whether the Military Commissions Act of 2006 … deprives courts of jurisdiction to consider their habeas claims, and, if so, whether that deprivation is constitutional.”

“I believe these questions deserve this court’s immediate attention,” he said.

“If petitioners are right about the law, immediate review may avoid an additional year or more of imprisonment,” he said. “If they are wrong, our review is nevertheless appropriate to help establish the boundaries of the constitutional provision for the writ of habeas corpus.”

White House spokeswoman Dana Perino said the ruling had not been fully reviewed but, “I think that, on first glance, we’re very pleased with the decision.”

Sen. Patrick J. Leahy, Vermont Democrat and chairman of the Senate Judiciary Committee, said the court’s decision underscored what he called the need for Congress to act quickly to “restore the fundamental habeas protections that were rolled back as part of the Military Commissions Act.”

“Congress cannot sit back and wait for the courts to fix this problem, but should instead pass the bipartisan bill that Senator [Arlen] Specter and I have introduced that would restore habeas rights to noncitizens,” he said. “We cannot and should not outsource our legal, moral and constitutional responsibilities.”

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