US Supreme Court Reverses Decision, Agrees to Hear Guantanamo Detainee Appeal

By Gary Thomas Washington 29 June 2007

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The U.S. Supreme Court has reversed itself and agreed to hear the appeals of detainees held at the U.S. facility at Guantanamo Bay, Cuba. As VOA correspondent Gary Thomas reports, legal scholars say it is a highly unusual move for the country's highest court.

A detainee sits behind a chain-linked fence on the grounds of Camp Delta detention facility, at the Guantanamo Bay U.S. Naval Base, Cuba, Sep 2006)

On the last day of its current session, the Supreme Court changed its mind about two cases involving detainees in government custody. After denying earlier appeals by the Guantanamo detainees in April, the court said it will hear arguments in its next term about whether inmates whom the government deems to be enemy combatants have the right to challenge their detention in a U.S. court.

There is some difference among legal scholars about exactly when the last time such a reversal occurred in the Supreme Court, but there is general agreement that it was about 40 years ago.

Eric Freedman, a law professor at Hofstra University and a legal advisor for the detainees, says the turnabout is a major victory for the Guantanamo inmates.

"It's a huge step forward for the detainees, and a serious, serious setback for the government's efforts to do anything except allow the independent judicial review which is at the bedrock of the separation of powers," said Freedman.

National Security Council spokesman Gordon Johndroe said the Bush administration does not believe any legal review of its detainee procedures is necessary, but added that it is confident about its legal position.

But even conservative legal scholars say the court decision to take the cases does not bode well for the administration's detainee policies.

David Rivkin, a former Justice Department official in the Reagan and first Bush administrations, calls the court action unfortunate. He noted that it takes only four of the nine justices to deny a hearing before the high court, but five to order a rehearing as it did Friday.

"It tells me that four justices for certain, and possibly five justices, entertain some questions about the propriety and legal sufficiency of the Military Commissions Act, which is of course the key underlying legislation passed last November that governs all aspects of detention and prosecution of unlawful enemy combatants," he said.

The detainees seek the right to challenge their detention in a federal court. The Bush administration says they are enemy combatants and therefore not entitled to such rights. At the administration's urging, Congress last year passed the law denying them that legal avenue and setting up military commissions to try detainees.

Eric Freedman says the government must explain to a civilian court why it is holding people in detention indefinitely.

"It is simply inimical to our Constitution that our government can throw somebody into a prison, announce that they are a national security threat, and not explain to a court the factual and legal basis why they're doing that," he said.

David Rivkin is gloomy about the Supreme Court's about-face, but adds he does not believe the court will totally abandon the military commission system.

"The courts are not going to cleanly kill the system," said Rivkin. "I do not believe that at any point in time the courts are going to come out and say, the laws of war paradigm does not apply, these people are not enemy combatants, you've got to let them go. At least the Supreme Court is most unlikely to do that because, frankly, even they understand how insane that would be."

The cases will be heard sometime after the next court term begins in October.