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June 12, 2008 – 1:08 p.m.

Supreme Court Lets Guantánamo Detainees

File Court Challenges
The Supreme Court dealt a severe blow to the Bush administration Thursday, ruling
that suspected terrorists held at Guantánamo Bay, Cuba, have a constitutional right to
challenge their detentions in federal court.
The court ruled 5-4 that limits imposed by Congress in 2005 and 2006 on the ability of
detainees held as enemy combatants to challenge their detentions in federal courts are
unconstitutional, in part because an alternative procedure established in the 2005 law
is inadequate.
“We hold these petitioners do have the habeas corpus privilege,” wrote Justice Anthony
M. Kennedy in the majority opinion.
The court ruled that provisions of the 2005 law providing status review for detainees
“are not an adequate and effective substitute for habeas corpus,” adding that a 2006
military commissions law “operates as an unconstitutional suspension of the writ.”
Both laws were enacted by Republican-controlled congresses.
Kennedy was careful to note that “we do not address whether the president has
authority to detain these petitioners nor do we hold that the writ must issue.”
“These and other questions regarding the legality of the detention are to be resolved in
the first instance by the District Court,” Kennedy wrote.
Kennedy, who had been seen as the swing vote in the case, was joined in the majority
by Stephen G. Breyer , Ruth Bader Ginsburg , David H. Souter and John Paul Stevens .
Dissenting were Chief Justice John Roberts Jr., who was joined by Antonin Scalia ,
Clarence Thomas and Samuel A. Alito Jr. Scalia filed a separate dissent, which the other
three also joined.
In his dissent, Roberts suggested the ruling was a bid for control over policy, rather
than resolution of a constitutional question.
“The majority merely replaces a review system designed by the people’s
representatives with a set of shapeless procedures to be defined by federal courts at
some future date,” Roberts wrote. “All that today’s opinion has done is shift
responsibility for those sensitive foreign policy and national security decisions from the
elected branches to the federal judiciary.”