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Homeland Security


US High Court Says Guantanamo Detainees Can Challenge Detention

By Al Pessin
12 June 2008

The U.S. Supreme Court has ruled that detainees at the Guantanamo Bay detention center have the right to challenge their detention in U.S. civilian courts, and cannot be restricted to the process the military has created. VOA's Al Pessin reports from the Pentagon.

By a 5-4 vote, the Supreme Court ruled that at least part of the revised process for holding and trying Guantanamo detainees, passed by the U.S. Congress two years ago, is invalid. Specifically, the court said the detainees have what is called the right of habeas corpus, the right to challenge their detentions in regular U.S. federal courts.

In a minority dissenting opinion, Justice Antonin Scalia wrote that the United States is "at war with radical Islamists" and said the court's decision "will make the war harder" and "will almost certainly cause more Americans to be killed."

But writing for the majority, Justice Anthony Kennedy wrote "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

"This ruling is a landmark ruling," said Joanne Mariner, who handles terrorism issues in the New York office of Human Rights Watch. "It, I think, restores our credibility as a nation committed to the rule of law. This is the first step towards creating a fair process."

And Mariner says it will not be possible for Congress to go around this Supreme Court ruling, as it did with two others on this issue, because the justices ruled that the detainees' right to have their detention reviewed is rooted in the U.S. Constitution.

But Justice Kennedy's ruling says federal judges could still rule to keep a detainee in custody if there are legitimate security concerns. Mariner says the ruling does not mean all 275 detainees at Guantanamo will be set free.

"The court has said the president can not hold people on his own say - so, that there has to be some kind of independent, fair process deciding whether these people should indeed be held," she said. "But it does not mean, I think it would be a big jump to say, well, this means that all the detainees at Guantanamo are going to be released, including those for whom there is strong evidence of involvement in terrorism."

But she says the ruling will allow U.S. civilian federal courts, with independent judges, to review the evidence in each case, and hear arguments from the government and the detainees' lawyers, and then decide whether each man should be held. She notes that some detainees have confessed, and even bragged about their involvement in terrorist attacks.

In some cases, the detainees claim they were tortured. And in some cases the government has admitted using harsh interrogation techniques. Mariner says that will be part of the information federal judges will now consider.

Several cases are already pending in federal courts, where judges have been awaiting the Supreme Court ruling.

Mariner says this could also be the beginning of the end of the Military Commissions process, which the 2006 law established to hold trials for the detainees, but she says that depends on future rulings. Already, the Associated Press quotes the military lawyer for one detainee, who was to go on trial before a military commission next month, as saying he will call for the case to be dismissed based on Thursday's Supreme Court ruling.

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