By Linda Greenhouse
WASHINGTON — The Supreme Court on Thursday delivered its third consecutive rebuff to the Bush administration's handling of the detainees at Guantánamo Bay, ruling 5 to 4 that the prisoners there have a constitutional right to go to federal court to challenge their continued detention.
The court declared unconstitutional a provision of the Military Commissions Act of 2006 that, at the administration's behest, stripped the federal courts of jurisdiction to hear habeas corpus petitions from the detainees seeking to challenge their designation as enemy combatants.
Writing for the majority, Justice Anthony M. Kennedy said the truncated review procedure provided by a previous law, the Detainee Treatment Act of 2005, "falls short of being a constitutionally adequate substitute" because it failed to offer "the fundamental procedural protections of habeas corpus."
Justice Kennedy declared: "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."
The decision, left some important questions unanswered. These include "the extent of the showing required of the government" at a habeas corpus hearing in order to justify a prisoner's continued detention, as Justice Kennedy put it, as well as the handling of classified evidence and the degree of due process to which the detainees are entitled.
Months or years of continued litigation may lie ahead, unless the Bush administration, or the administration that follows it, reverses course and closes the prison at Guantánamo Bay, which now holds 270 detainees. Chief Judge Royce C. Lamberth of the Federal District Court here said the court's judges would meet in the next few days with lawyers for both sides to decide "how we can approach our task most effectively and efficiently."
There are some 200 habeas corpus petitions awaiting action in the District Court, including those filed by the 37 detainees whose appeals were before the Supreme Court in the case decided on Thursday, Boumediene v. Bush, No. 06-1195.
Despite the open questions, the decision, which was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, was categorical in its rejection of the administration's basic arguments. Indeed, the court repudiated the fundamental legal basis for the administration's strategy, adopted in the immediate aftermath of the attacks of Sept. 11, 2001, of housing prisoners captured in Afghanistan and elsewhere at the United States naval base in Cuba, where Justice Department lawyers advised the White House that domestic law would never reach.
In a concurring opinion on Thursday, Justice Souter said the ruling was "no bolt out of the blue," but rather should have been anticipated by anyone who read the court's decision in Rasul v. Bush in 2004. That decision, part of the initial round of Supreme Court review of the administration's Guantánamo policies, held that because the long-term lease with Cuba gave the United States unilateral control over the property, the base came within the statutory jurisdiction of the federal courts to hear habeas corpus petitions.
Congress responded the next year, in the Detainee Treatment Act, by amending the statute to remove jurisdiction, and it did so again in the Military Commissions Act to make clear that it wanted the removal to apply to cases already in the pipeline. The decision on Thursday went beyond the statutory issue to decide, for the first time, the underlying constitutional question.
President Bush, appearing with Prime Minister Silvio Berlusconi of Italy at a news conference in Rome, said he was unhappy with the decision. "We'll abide by the court's decision — that doesn't mean I have to agree with it," the president said, adding that "it was a deeply divided court, and I strongly agree with those who dissented."
The dissenting opinions, one by Chief Justice John G. Roberts Jr. and the other by Justice Scalia, were vigorous. Each signed the other's, and the other two dissenters, Justices Clarence Thomas and Samuel A. Alito Jr., signed both.
Of the two dissenting opinions, Justice Antonin Scalia's was the more apocalyptic, predicting "devastating" and "disastrous consequences" from the decision. "It will almost certainly cause more Americans to be killed," he said. "The nation will live to regret what the court has done today." He said the decision was based not on principle, "but rather an inflated notion of judicial supremacy."
Chief Justice Roberts, in somewhat milder tones, said the decision represented "overreaching" that was "particularly egregious" and left the court open to "charges of judicial activism." The decision, he said, "is not really about the detainees at all, but about control of federal policy regarding enemy combatants." The public will "lose a bit more control over the conduct of this nation's foreign policy to unelected, politically unaccountable judges," he added.
The focus of the chief justice's ire was the choice the majority made to go beyond simply ruling that the detainees were entitled to file habeas corpus petitions. Under two unrelated Supreme Court precedents, formal habeas corpus procedures are not necessarily required, as long as Congress provides an "adequate substitute."
Congress in this instance did provide an alternative procedure that might be viewed as a substitute. The Detainee Treatment Act gave detainees access to the federal appeals court here to challenge their designation as enemy combatants, made by a military panel called a Combatant Status Review Tribunal.
The detainees' lawyers argued that because this process fell far short of the review provided by traditional habeas corpus, it could not be considered an adequate substitute. The appeals court itself never decided that question, because it ruled in February 2007 that the detainees had no right to habeas corpus in the first place, and that all their petitions must be dismissed. It was this ruling that the Supreme Court reviewed on Thursday.
Justice Kennedy said the Supreme Court, having decided that there was a right to habeas corpus, would "in the ordinary course" send the case back to the appeals court for it to consider "in the first instance" whether the alternative procedure was an adequate substitute.
But he said "the gravity of the separation-of-powers issues raised by these cases and the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional" and required the justices to decide the issue for themselves rather than incur further delay.
The majority's conclusion was that the alternative procedure had major flaws, mostly because it did not permit a detainee to present evidence that might clear him of blame but was either withheld from the record of the Combatant Status Review Tribunal or was learned of subsequently. The tribunals' own fact-finding ability was so limited as to present "considerable risk of error," thus requiring full-fledged scrutiny on appeal, Justice Kennedy said.
Eric M. Freedman, a habeas corpus expert at Hofstra University Law School, said the court was "on the right side of history" to reject what he called "habeas lite." Calling the decision "a structural reaffirmation of what the rule of law means," Professor Freedman, who was a consultant to the detainees' lawyers, said it was as important a ruling on the separation of powers as the Supreme Court has ever issued.
Mr. Bush, in his statement in Rome, said the administration would decide whether to ask Congress to weigh in once more. Success at such an effort would appear unlikely, given that the Supreme Court decision was praised not only by the Democratic leadership, but also by the ranking Republican on the Senate Judiciary Committee, Arlen Specter of Pennsylvania. Senator Specter had voted for the jurisdiction-stripping measure, but then filed a brief at the court arguing that the law was unconstitutional.
In addition to removing habeas corpus jurisdiction, the Military Commissions Act also provided authority for the military commissions that the court's 2006 decision in Hamdan v. Rumsfeld said was lacking. The case the court decided on Thursday did not directly concern military commissions, which are due to conduct trials of the several dozen detainees who have been charged with war crimes. The Justice Department said on Thursday that the decision would not delay those trials.
Divided as the Supreme Court was in this case, the justices were unanimous, surprisingly so, in a second habeas corpus ruling on Thursday. Again rejecting the Bush administration's position, the court held in an opinion by Chief Justice Roberts that two civilian United States citizens being held in American military custody in Iraq were entitled to file habeas corpus petitions.
Proceeding to the merits of the petitions, the court then ruled against the two men, Mohammad Munaf and Shawqi Ahmad Omar, who are facing criminal charges under Iraqi law. Their release through habeas corpus "would interfere with the sovereign authority of Iraq to punish offenses against its laws committed within its borders," Chief Justice Roberts said.
The administration had argued in the case, Munaf v. Geren, No. 06-1666, that because the men were technically held by the 26-nation multinational force in Iraq, federal courts did not have jurisdiction to hear their habeas corpus petitions. Chief Justice Roberts said that, to the contrary, what mattered was that the men were held by "American soldiers subject to a United States chain of command."
Steven Lee Myers contributed reporting from Rome.