Supreme Court Denies Guantánamo Appeal - New York Times

Supreme Court Denies Guantánamo Appeal - New York Times

April 3, 2007
Supreme Court Denies Guantánamo Appeal
By LINDA GREENHOUSE
WASHINGTON, April 2 — The Supreme Court on Monday declined to hear urgent appeals from two groups of detainees at Guantánamo Bay. The 45 men sought to challenge the constitutionality of a new law stripping federal judges of the authority to hear challenges to the open-ended confinement of foreign citizens held at the American naval base in Cuba and designated as enemy combatants.

The court’s action leaves standing a ruling six weeks ago by the federal appeals court here that upheld the jurisdiction-stripping provision of the Military Commissions Act of 2006. The justices’ refusal to hear the case at this point, before any of the detainees have availed themselves of alternative appeal procedures that their lawyers argue are unconstitutionally truncated, does not foreclose eventual consideration by the court after those appeals have run their course.

The men have all been held at Guantánamo Bay for more than five years, and none has been charged with a crime. They filed petitions for habeas corpus, challenging their continued confinement, before Congress ordered in the 2006 law that all such petitions must be dismissed and no new ones could be accepted for filing.

Ordinarily, the Supreme Court makes no comment when it turns down an appeal. In this instance, the court offered an unusual degree of transparency, with two separate opinions accompanying the one-sentence order denying the two petitions.

One was a dissenting opinion from three justices, Stephen G. Breyer, David H. Souter and Ruth Bader Ginsburg, who voted to hear the cases as “significant ones warranting our review,” as Justice Breyer said in an opinion that spoke for the three.

The separate opinion was a statement “respecting the denial,” signed jointly by Justices John Paul Stevens and Anthony M. Kennedy. They explained why they voted against hearing the cases. They said the court should follow its usual practice for ordinary prison inmates and require “the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus.”

Despite the apparent transparency, the real story was probably one that no justice acknowledged: the inability of the court’s four most liberal members, Justices Stevens, Breyer, Souter and Ginsburg, to count on Justice Kennedy’s eventual vote.

While four votes are sufficient to grant a case under the court’s rules, five are of course necessary to win it. The liberal justices, or at least their leader, Justice Stevens, may well have decided that refraining at this point was the wiser course, given the risk that the case might come out the “wrong” way, from their point of view, with an affirmation of the appeals court’s decision that would then become a hard and fast Supreme Court precedent.

Justice Stevens is the author of the court’s two decisions rejecting the Bush administration’s legal analysis of the status of the Guantánamo detainees, Rasul v. Bush in 2004 and Hamdan v. Rumsfeld last June. He almost certainly agreed on Monday with the assessment in Justice Breyer’s dissenting opinion that the men bringing the new appeals “plausibly argue that the lower court’s reasoning is contrary to this court’s precedent” as expressed in the earlier opinions.

But Justice Stevens, who will turn 87 later this month, is also a strategic and canny inside player who knew that providing a fourth vote to hear the cases without assurance of Justice Kennedy’s position risked putting them on track to the wrong destination.

Furthermore, Justice Ginsburg evidently did not agree with Justices Stevens and Souter that the court should not only grant the appeals, but also should schedule argument on an expedited basis in order to decide them in June. She declined to sign the part of Justice Breyer’s opinion that called for expedited review.

That meant that even if the court did vote to hear the cases, the argument would be deferred until next fall and a decision might well be a year or more away. Now that the appeals have been denied, the detainees’ lawyers will undoubtedly explore other options for moving the cases along, perhaps even more quickly.

Justices Stevens and Kennedy said pointedly that if it turns out that “the government has unreasonably delayed proceedings” or subjects the detainees to “some other and ongoing injury,” the Supreme Court would be open to a renewed appeal.

At issue at this point are challenges to proceedings known as Combatant Status Review Tribunals that decide whether a detainee should be labeled an enemy combatant. Under the Detainee Treatment Act of 2005, the United States Court of Appeals for the District of Columbia Circuit has sole jurisdiction to hear appeals from the tribunal’s determination.

The detainees’ lawyers argue that both the tribunals and the limited form of review in the appeals court are fatally flawed.

The cases were Boumediene v. Bush, No. 06-1195, and Al Odah v. United States, No. 06-1196.