From the Center for Constitutional Rights, April 2:

Supreme Court Denies Immediate Review of Guantanamo Cases
Clients May Wait Another Year in Detention Without Meaningful Way to Challenge Imprisonment
The Supreme Court announced today that it would not be hearing the cases of the Guantánamo detainees for the time being. The Court denied the Center for Constitutional Rights (CCR) and co-counsel's motion to hear the case with three justices dissenting and two issuing a statement that the detainees should exhaust the process set up by the Detainee Treatment Act (DTA), allowing for limited appeals from the decisions of military review panels, before they would consider ruling on constitutional questions. Attorneys with the Center for Constitutional Rights expressed disappointment with the ruling.

"The Supreme Court has once more delayed the resolution of the fate of these detainees— three quarters of whom the military admits it will never charge—who have languished without any meaningful way to challenge their detention for more than five years," said CCR Executive Director Vincent Warren. "The processes the government put in place are a sham—they allow the use of evidence obtained through torture and no real review of the facts. DTA review is not an adequate substitute for the right of habeas corpus. We hope our clients survive until they finally get their day in court."

The two justices who issued the statement, Kennedy and Stevens, wish to see the process put in place by the DTA played out to determine if it is an adequate substitute for habeas corpus before they rule. The DTA allows detainees to challenge in the Court of Appeals the decisions of the Combatant Status Review Tribunals (CSRT's) determining they are so-called "enemy combatants." Attorneys with the Center made the following points:

* The CSRT's are a sham process where the government controls what evidence and witnesses are permitted, evidence obtained by torture is permissible, and the detainees have no lawyer representing them and no guarantee of due process.

* The DTA review in the Court of Appeals only allows review of whether the government adhered to its own rules, and contains no provision for considering additional facts not allowed to be considered in the CSRT process.

* The scope of whom the president can label an "enemy combatant" is ever-shifting and virtually without limit.

* Some detainees were sent through the CSRT process as many as three times until they were found guilty—the process is designed to get the government the results it wants.

Today's denial was not a ruling on the merits of the cases brought, but on the question of whether the Court should take up the case at this moment. Justices Stevens an Kennedy issued the following warning:

"If petitioners later seek to establish that the Government has unreasonably delayed proceedings under the Detainee Treatment Act of 2005, Tit. X, 119 Stat. 2739, or some other and ongoing injury, alternative means exist for us to consider our jurisdiction over the allegations made by petitioners before the Court of Appeals."

Justice Breyer wrote in his dissent, "It is unreasonable to suggest that the D.C. Circuit in future proceedings under the DTA will provide review that affords petitioners the rights that the Circuit has already concluded they do not have."

The Supreme Court affirmed the detainees' right to habeas corpus review both in CCR's landmark case Rasul v. Bush in 2004 and in Hamdan v. Rumsfeld in 2006. The Center for Constitutional Rights represents many of the detainees at Guantánamo and coordinates the work of nearly 500 pro bono attorneys.

CCR's managing attorney Shane Kadidal writes for The Jurist:

The decision, while by no means a death blow to the detainees' fundamental claims, ensures additional long delays before the court process can result in release for any of the many acknowledged innocent men held at the base.

Justices Stevens and Kennedy, who voted to deny review, issued a statement indicating that detainees should exhaust the process set up by the Detainee Treatment Act of 2005 (DTA) to better allow the Court to determine if that review process is an adequate substitute for habeas corpus. This inquiry itself implies strongly that five justices agree that the Military Commissions Act of 2006 (MCA), which the government claims strips jurisdiction in these cases from the courts, suspends the writ of habeas corpus. The DTA nominally allows detainees to challenge in the Court of Appeals the decisions of the Combatant Status Review Tribunals (CSRTs) determining they are so-called "enemy combatants."

However, the CSRT process is fatally flawed: the government controls what evidence and witnesses are permitted; classified evidence, hearsay, and evidence obtained by torture is admissible; and the detainees have no right to counsel. The end target of the process is also elusive: the definition of "enemy combatant" has shifted several times in the past three years, and the current statutory definition in the MCA is virtually limitless in who can be classified as an "enemy combatant." Even with the system heavily stacked against them, some detainees have been exonerated by the panels—in some cases, some of the men were then sent through the process a second or third time until the military got the result it wanted.

See our last posts on Gitmo and the torture/detainment scandal, the Military Commissions Act and the Detainee Treatment Act.