Habeas Ruling Lays Bare the Divide Among Justices
Washington Post
By Robert Barnes and Del Quentin Wilber
Washington Post Staff Writers
Sunday, June 15, 2008; Page A03

The Supreme Court's decision that detainees held in Guantanamo Bay, Cuba, have a right to challenge their imprisonment before a judge revealed in vivid detail the justices' deep divide over the role of the judiciary in wartime.

As a practical matter, the 5 to 4 decision returns to the spotlight Washington's federal district judges, who are now conferring to develop a framework for handling about 200 cases filed by those the government suspects of terrorism held at the island naval base.

It is a role that practically consumed the court until Congress, at the behest of the Bush administration, stripped it of the responsibility. Indeed, the cases the Supreme Court decided Thursday, Boumediene v. Bush and Al Odah v. U.S., arose from conflicting decisions by D.C. district judges.

As both sides of the court acknowledged in Thursday's decision, the cases exposed fundamental differences in the court's vision of judicial power. The conservatives favor adherence to strict rules and regulations promulgated by the political branches. The liberals are content to let judges judge, working out the boundaries between constitutional rights and national security.

The tie-breaker was Justice Anthony M. Kennedy, the nomadic conservative who in this case espoused a strong role for independent judges.

His cool assertion in the majority opinion of an essential role for the judiciary brought heated dissents from Chief Justice John G. Roberts Jr. and Justice Antonin Scalia. It lauded the role of the courts as a check on executive power and downplayed deference to the political branches.

"Within the Constitution's separation-of-powers structure, 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," Kennedy wrote. He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Roberts stopped just short of calling the opinion a power grab. "One cannot help but think . . . this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants," he wrote.

He lamented that military and intelligence officials would have a lesser role in shaping policy toward enemy combatants than lawyers and "unelected, politically unaccountable judges."

Scalia called the judiciary "the branch that knows least about . . . national security concerns" and penned the darkest line of the court's 126 pages of back-and-forth: "It will almost certainly cause more Americans to be killed."

Roberts and Scalia took the additional step of joining each other's dissent, along with Justices Clarence Thomas and Samuel A. Alito Jr.

The decision is not a surprise; the court by a narrow margin has objected each time it has considered Bush administration attempts to handle the terrorism suspects outside the normal confines of the legal system. But both wings of the court displayed a clear impatience.

In the decision and a concurring opinion by Souter, the majority notes half a dozen times that some detainees have been held more than six years without a hearing before an independent judge.

"The court believed enough time has passed that it would be abdicating its responsibility by ignoring this habeas [corpus] controversy," said Timothy Lynch, director of the Project on Criminal Justice at the Cato Institute. The libertarian think tank filed a brief endorsing the view that the courts have a vital role to play in the process.

Lynch said Kennedy's strongly worded opinion was not surprising: "At the end of the day, he is a strong believer in the courts having a final say in what is the law."

Roberts, on the other hand, criticized Kennedy for striking down a "review system designed by the people's representatives" and replacing it "with a set of shapeless procedures to be defined by federal courts at some future date."

Among the questions the majority acknowledged leaving open are due process requirements, how the courts should handle classified information and what the government must show to justify the continued imprisonment of a detainee.

David Cole, a professor at the Georgetown University Law Center, agreed that the opinion left "more unanswered questions than answered questions" about the shape and scope of the hearings the court said detainees deserved.

By week's end, District Court officials were still trying to set meetings with attorneys for the government and for the detainees. "This is going to be complicated," said Cole. He, along with other legal experts, said the very definition of "enemy combatant" is a "still unresolved question."

But in some ways, the rules for the District Court are clearer this time. All foreign prisoners still held in Guantanamo have been deemed to have a right to challenge their imprisonment through a writ of habeas corpus in this court. Several dozen habeas cases were dismissed after Congress passed the 2006 Military Commissions Act, as judges concluded they no longer had jurisdiction to rule on the challenges.

New Chief Judge Royce C. Lamberth might revive the court's previous policy and name one judge to oversee the process for administering the cases, and set rules for the detainee and administration lawyers to follow.

A likely candidate is Judge Thomas F. Hogan, a Reagan appointee who recently stepped down from the chief judge's job and completed a stint as head of the executive board of the U.S. Judicial Conference. He became chief judge after the Sept. 11, 2001, attacks and was heavily involved in the terrorism-related cases that swamped the court.

It was in cases at the D.C. District Court that the world first learned of what the government alleged about the terrorist ties of the detainees -- and what many prisoners alleged about their mistaken capture and torture. Judges held hearings on the claims of the detainees after their lawyers interviewed them in Cuba for the first time, and returned home with prisoners' accounts.

These judges were the first outside the military to see the government's classified evidence from military tribunals, which the Pentagon said had established the detainees were linked to al-Qaeda, the Taliban, or their associates.

One logistical decision for the courts this time is how to give the detainees their day in court.

"The District Court here can probably work out some process with the Pentagon where they might send a couple of judges down to Guantanamo to hear evidence when the detainee needs to be present," said Daniel Marcus, a law professor at the Washington College of Law at American University.

"Judges are reluctant to do video conferencing, but that might be a logical compromise given the fact that these guys are locked up" on a U.S. naval base in a foreign country.

Staff writer Carol D. Leonnig contributed to this report.

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