International Herald Tribune (6.29.07).

U.S. Supreme Court reverses course on Guantánamo detainees

By William Glaberson

The U.S. Supreme Court reversed course Friday and agreed to hear claims of Guantánamo detainees that they have a right to challenge their detentions in American federal courts.

The decision, announced in a brief order issued Friday morning, set the stage for a historic legal battle that appeared likely to shape debates in the Bush administration about when and how to close the detention center that has become a lightning rod for international criticism.

The exceptionally unusual order, which required votes from five of the nine justices, gave lawyers for detainees more than they had requested in a motion asking the justices to reconsider an April decision declining to review the same case. Lawyers for detainees had asked only that the court hold the case open for future consideration. The Friday order meant that the court would hear the case in its next term, perhaps by December.

Experts on the Supreme Court said the justices so rarely grant such motions for reconsideration that the order itself was significant. They said it signaled that the justices had determined they needed to resolve a new politically and legally significant Guantánamo issue, after two earlier Supreme Court decisions that have been sweeping setbacks for the administration's detention policies.

Lawyers for many of the 375 men now held at the naval station on a scrubby corner of Cuba greeted the unexpected news with euphoria. They said it appeared the court was headed toward a ruling on one of the central principles of the administration's detention policies: the claim that the government can hold "enemy combatants" without allowing them to use the ancient legal tool of the writ of habeas corpus, a legal action used in English law for centuries to challenge the legality of detentions.

"Finally, after nearly six years, the Supreme Court is going to rule on the ultimate question: Does the Constitution protect the people detained at Guantánamo Bay?" said Neal Katyal, a Georgetown University law professor who argued the last Supreme Court case involving the Guantánamo detainees.

In that case, decided last June, the justices struck down the administration's planned system for war crimes trials of detainees.

The issue in the case the court agreed Friday to hear is whether Congress can strip the federal courts of the power to hear habeas corpus cases filed by Guantánamo detainees. In legislation passed after the Supreme Court ruling last June, Congress included a provision barring such suits by the detainees.

"The Supreme Court has taken a giant step toward ensuring the detainees a day in court," said David Remes, a Washington lawyer who represents Yemeni detainees at Guantánamo.

The Justice Department has argued that national security would be imperiled if habeas corpus cases could be used by federal judges to second-guess decisions by military officials to detain enemies during wartime.

"We are disappointed with the decision, but are confident in our legal arguments and look forward to presenting them before the court," said a Justice Department spokesman, Erik Ablin.

The Friday order permitting the case to be argued in the Supreme Court was a different result than the justices reached April 2, when they decided not to hear the case at that time.

Unusual language in justices' statements accompanying that order had suggested maneuvering among the justices on whether or when they should again get involved in the tangled legal questions presented by Guantánamo.