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For Detainees, Justice Delayed, or Denied?

Steven R. Shapiro,
Former ACLU Legal Director
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April 3, 2007

The Guantanamo detainees fell one vote short yesterday of persuading the Supreme Court to hear their challenge to the Military Commissions Act, which strips the federal courts of jurisdiction to hear habeas corpus petitions filed by so-called "enemy combatants."

When the Court decides not to hear a case, it typically issues a simple one-sentence order announcing that review has been denied without further elaboration. The Court's four most conservative members , Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito , adhered to that practice, voting to deny review without explanation. The court's remaining five members, however, joined in two separate opinions that accompanied Monday's order.

Three of the Court's more liberal members , Justice Souter, Justice Ginsburg, and Justice Breyer , voted in favor of review, with Justice Breyer and Justice Souter also urging that the case be heard on an expedited schedule this spring. Their reasoning was set forth in an opinion by Justice Breyer, who wrote that the case raised "important" questions that deserved the Court's "immediate attention" for several reasons. First, habeas corpus is supposed to provide detainees with a "speedy" remedy for unlawful detention, and many of the Guantanamo detainees have already been held for more than five years. Second, he said, the detainees have presented a "plausibl[e]" argument that the court of appeals was wrong to uphold the Military Commissions Act and thus prolong their detention.

The Constitution provides that habeas corpus can only be suspended "when in cases of rebellion or invasion the public safety may require it." Because Congress had made no findings that even arguably justified the suspension of habeas corpus in the Military Commissions Act, lawyers for the Guantanamo detainees immediately challenged the constitutionality of the new law. They lost, by a 2-1 vote, in the United States Court of Appeals for the District of Columbia. The appeals court ruled that the Constitution does not apply to Guantanamo and that habeas corpus is not available to anyone outside the territorial United States , two rulings that are, at the very least, questionable in light of the Supreme Court's prior decision.

With three votes for review and four against, the question of whether the Court would hear the case turned on the views of Justice Stevens, who wrote the earlier Rasul v. Bush decision in favor of the Guantanamo detainees, and Justice Kennedy, who is widely regarded as the Court's critical swing vote. Together, they issued a short, two-page "statement" agreeing with Justice Breyer that the case was worthy of Supreme Court review but disagreeing about timing. Specifically, they concluded that the Supreme Court would be in a better position to consider whether Congress had provided the detainees with an adequate alternative to habeas corpus if the detainees first pursued the limited appeal rights that Congress has allowed from the combatant status review tribunals at Guantanamo, which have been widely condemned as kangaroo courts that fail to meet even minimum due process standards.

It is, of course, impossible to know what persuaded Justice Stevens and Justice Kennedy to defer Supreme Court review in this fashion. There has been speculation in the press that Justice Stevens was uncertain of Justice Kennedy's position on the merits and, therefore, preferred to delay consideration of the Military Commissions Act rather than risk a decision upholding its constitutionality. Perhaps that is the explanation, perhaps not.

What is certain is that the Guantanamo detainees are now facing at least another year before they can get back to the Supreme Court, despite pointed comments by Stevens and Kennedy warning the government not to delay proceedings. And, even if the Guantanamo detainees ultimately win the battle over the Military Commissions Act on a return trip to the Supreme Court, the fight will still be about the proper procedure for reviewing their detention rather than whether they should be imprisoned at all. Procedure matters. But, five years after the first detainees were brought to Guantanamo, we should not still be arguing about the proper procedures for trying them. In the eyes of the world, it is hard to see yesterday's Supreme Court action as anything other than a case of "justice delayed is justice denied."

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