- The Washington Times - Saturday, June 30, 2007

The Supreme Court yesterday agreed to review whether Guantanamo Bay detainees can use the civilian court system to challenge their indefinite confinements.

The Bush administration has contended that a 2005 law strips civilian courts of jurisdiction to hear the cases.

The court said it will decide whether the law — which authorizes military hearings and limited judicial review — validly bars judges from considering so-called habeas corpus petitions filed by prisoners challenging their detention at the U.S. naval base in Cuba.

About 375 detainees are being held, only 10 of whom have ever faced charges.

In April, the court turned down an identical request, although two of the justices, John Paul Stevens and Anthony M. Kennedy, wrote at the time they could be persuaded otherwise. Yesterday’s reversal came without comment.

“It seems those two justices have reconsidered and are prepared to hear the case,” said Carl Tobias, a professor at the University of Richmond School of Law.

“This may indicate some discomfort with Guantanamo or the appeals procedure and may suggest a disposition to rule on the merits for plaintiffs, once the court has had briefing and argument,” Mr. Tobias said. “What is so striking is the reversal of position in such a short period.”

In the fall, the court will review challenges by two groups of Guantanamo detainees who have been held since 2002 — six Algerian natives seized in Bosnia-Herzegovina and 39 prisoners taken into custody in Afghanistan or the bordering areas of Pakistan.

The April denial let stand 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 was a temporary victory for President Bush’s claim of broad authority to hold prisoners without charges and eventually bring to trial the Guantanamo detainees.

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 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 in April, Justices Stevens and 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 suspected terrorists.

In April, 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 at the time that detainees should go before military tribunals first and seek a Supreme Court review later if they could show that 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.

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.

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