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Justices Rule Terror Suspects Can Appeal

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Justices Rule Terror Suspects Can Appeal in Civilian Courts
by: David Stout
The New York Times

Washington - Foreign terrorism suspects held at the 
Guantánamo Bay naval base in Cuba have constitutional 
rights to challenge their detention there in United 
States courts, the Supreme Court ruled, 5 to 4, on 
Thursday in a historic decision on the balance between 
personal liberties and national security. 

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

The ruling came in the latest battle between the executive 
branch, Congress and the courts over how to cope with 
dangers to the country in the post-9/11 world. Although 
there have been enough rulings addressing that issue to 
confuse all but the most diligent scholars, this latest 
decision, in Boumediene v. Bush, No. 06-1195, may be 
studied for years to come.

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The justices rejected the administration's argument that 
the individual protections provided by the Detainee Treat-
ment Act of 2005 and the Military Commissions Act of 2006 
were more than adequate. 

"The costs of delay can no longer be borne by those who 
are held in custody," Justice Kennedy wrote, assuming the 
pivotal rule that some court-watchers had foreseen. 

Joining Justice Kennedy's opinion were Justices John Paul 
Stevens, Stephen G. Breyer, Ruth Bader Ginsburg and David 
H. Souter. 

The dissenters were Chief Justice John G. Roberts Jr. and 
Justices Samuel A. Alito Jr., Antonin Scalia and Clarence 
Thomas, generally considered the conservative wing on the 


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The 2006 Military Commission Act stripped the federal 
courts of jurisdiction to hear habeas corpus petitions 
filed by detainees challenging the bases for their 
confinement. That law was upheld by the United States 
Court of Appeals for the District of Columbia Circuit 
in February 2007. 

At issue were the "combatant status review tribunals," 
made up of military officers, that the administration 
set up to validate the initial determination that a 
detainee deserved to be labeled an "enemy combatant." 

The military assigns a "personal representative" to each 
detainee, but defense lawyers may not take part. Nor are 
the tribunals required to disclose to the detainee details 
of the evidence or witnesses against him - rights that 
have long been enjoyed by defendants in American civilian 
and military courts. 

Under the 2005 Detainee Treatment Act, detainees may appeal 
decisions of the military tribunals to the District of 
Columbia Circuit, but only under circumscribed procedures, 
which include a presumption that the evidence before the 
military tribunal was accurate and complete. 

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In the years-long debate over the treatment of detainees, 
some critics of administration policy have asserted that 
those held at Guantánamo have fewer rights than people 
accused of crimes under American civilian and military 
law and that they are trapped in a sort of legal limbo. 

The detainees at the center of the case decided on Thursday 
are not all typical of the people confined at Guantánamo. 
True, the majority were captured in Afghanistan or Pakistan.
But the man who gave the case its title, Lakhdar Boumediene,
is one of six Algerians who immigrated to Bosnia in the 
1990's and were legal residents there. They were arrested 
by Bosnian police within weeks of the Sept. 11 attacks on 
suspicion of plotting to attack the United States embassy 
in Sarajevo - "plucked from their homes, from their wives 
and children," as their lawyer, Seth P. Waxman, a former 
solicitor general put it in the argument before the 
justices on Dec. 5. 

The Supreme Court of Bosnia and Herzegovina ordered them 
released three months later for lack of evidence, whereupon 
the Bosnian police seized them and turned them over to the 
United States military, which sent them to Guantánamo. 

Mr. Waxman argued before the United States Supreme Court 
that the six Algerians did not fit any authorized 
definition of enemy combatant, and therefore ought to 
be released. 

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