The Supreme Court's decision on Guantanamo Bay will unleash a torrent of court filings from detainees seeking their freedom but won't affect the military trials planned for some terrorism suspects, Attorney General Michael Mukasey said Friday.
The Bush administration disagrees strongly with the high court's decision that the foreigners held under indefinite detention at the Guantanamo naval base in Cuba have the right to seek release in civilian court. President Bush said Thursday he would abide by the decision, but also said his administration was evaluating whether to respond to the court's ruling with new legislation.
In Brussels, Belgium, on Friday, Defense Secretary Robert Gates said he would reserve judgment on "what we ought to do next" at Guantanamo until he received briefings on the ruling.
"I have often said that ... we would like to close Guantanamo," Gates said. "I think that despite the fact that in many respects Guantanamo has become a state-of-the-art prison now, early reports of abuses and so on unquestionably were a black eye for the United States."
Thursday's much-anticipated 5-to-4 ruling was the third time the justices have repudiated Bush on his ambitious and hugely controversial schemes to hold the suspects outside the protections of U.S. law.
Speaking at a Group of Eight meeting of justice and home affairs ministers in Tokyo, Mukasey said, "I'm disappointed with the decision, in so far as I understand that it will result in hundreds of actions challenging the detention of enemy combatants to be moved to federal district court."
He added: "I think it bears emphasis that the court's decision does not concern military commission trials, which will continue to proceed. Instead it addresses the procedures that the Congress and the president put in place to permit enemy combatants to challenge their detention."
DOJ to comply with ruling
He said the Justice Department would comply with the ruling while studying the decision and "whether any legislation or any other action may be appropriate."
So far, 19 of the detainees, including Khalid Sheikh Mohammed and four other alleged Sept. 11 plotters, are facing military war crimes trials. The Pentagon has said it plans to try as many as 80 of the roughly 270 men held at Guantanamo.
But the lawyer for Salim Ahmed Hamdan, Osama bin Laden's one-time driver, said he will seek dismissal of the charges against Hamdan based on the new ruling. A military judge had already delayed the trial's start to await the high court's decision.
"The entire legal framework under which Mr. Hamdan was to be tried has been turned on its head," said his lawyer, Navy Lt. Cmdr. Brian Mizer.
It was unclear whether a hearing at Guantanamo for Canadian Omar Khadr, charged with killing a U.S. Special Forces soldier in Afghanistan, would go forward next week as planned.
Charles Swift, the former Navy lawyer who used to represent Hamdan, said he believes the court removed any legal basis for keeping the Guantanamo facility open and that the military tribunals are "doomed."
Guantanamo generally and the tribunals were conceived on the idea that "constitutional protections wouldn't apply," Swift said. "The court said the Constitution applies. They're in big trouble."
Scalia's blistering dissent
In writing for the court majority, Justice Anthony Kennedy acknowledged the terrorism threat the country faces — the administration's justification for the detentions — but he declared, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."
In a blistering dissent, Justice Antonin Scalia said the decision "will make the war harder on us. It will almost certainly cause more Americans to be killed."
Bush has argued the detentions are needed to protect the nation in a time of unprecedented threats from al-Qaida and other foreign terrorist groups. The president, in Rome on Thursday, said, "It was a deeply divided court, and I strongly agree with those who dissented." Kennedy said federal judges could ultimately order some detainees to be released, but he also said such orders would depend on security concerns and other circumstances. The ruling itself won't result in any immediate releases.
Lawyers for detainees differed over whether the ruling, unlike the first two, would lead to prompt hearings for those who have not been charged. Of the roughly 270 men remaining at the prison, most are classed as enemy combatants and held on suspicion of terrorism or links to al-Qaida and the Taliban.
Some detainee lawyers said hearings could take place within a few months. But James Cohen, a Fordham University law professor who has two clients at Guantanamo, predicted Bush would continue seeking ways to resist the ruling. "Nothing is going to happen between June 12 and Jan. 20," when the next president takes office, Cohen said.
Roughly 200 detainees have lawsuits on hold in federal court in Washington. Chief Judge Royce C. Lamberth said he would call a special meeting of federal judges to address how to handle the cases. Detainees already facing trial are in a different category.
Human rights groups and many Democratic members of Congress celebrated the ruling as affirming the nation's commitment to the rule of law. Several Republican lawmakers called it a decision that put foreign terrorists' rights above the safety of the American people.
The administration opened the detention facility at Guantanamo Bay shortly after the Sept. 11, 2001, terrorist attacks to hold enemy combatants, people suspected of ties to al-Qaida or the Taliban.
At its heart, the 70-page ruling says that the detainees have the same rights as anyone else in custody in the United States to contest their detention before a judge. Kennedy also said the system the administration has put in place to classify detainees as enemy combatants and review those decisions is not an adequate substitute for the right to go before a civilian judge.
Chief Justice John Roberts, in his own dissent, criticized the majority for striking down what he called "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."
Justices Samuel Alito and Clarence Thomas also dissented.
Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens — the court's more liberal members — joined Kennedy to form the majority.
The court has ruled twice previously that people held at Guantanamo without charges can go into civilian courts to ask that the government justify their continued detention. Each time, the administration and Congress, then controlled by Republicans, changed the law to try to close the courthouse doors to the detainees.