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The U.S. Supreme Court yesterday declined to hear the next wave of appeals from Guant�namo detainees seeking to challenge their detention in federal court. The twin cases, Boumediene v. Bush and al Odah v. United States, filed on behalf of nearly 40 detainees at the prison in Guant�namo Bay, Cuba, sought to overturn a provision of the Military Commissions Act that stripped detainees of the ability to challenge their detention before a federal district judge. The move lets stand a 2-1 decision by the U.S. Court of Appeals for the D.C. Circuit in February that upheld the portion of the commissions law dealing with habeas corpus. The constitutionality of the commissions themselves was not an issue in the case. In denying review in the case, Justices John Paul Stevens and Anthony Kennedy wrote that the detainees had not yet exhausted “available remedies.” But they issued a warning to the government by citing an earlier detainee case in which Kennedy had written that the high court “should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised.” The remedy now available to the detainees is to appeal their designation as “enemy combatants,” which was made by a panel of military officers known as a Combatant Status Review Tribunal. Such a determination is a prelude to detainees being tried by the Pentagon’s new military commissions, which are due to begin this summer. Under existing law, detainees can appeal the enemy-combatant designation to the D.C. Circuit. But that appeal is limited by the 2005 Detainee Treatment Act. Under that law, detainees will not be allowed to introduce new evidence or question whether evidence used against them in the status tribunals was obtained through unlawful interrogation methods. Yesterday’s decision leaves open the possibility that the justices will review specific status determinations once they are made by the Pentagon panels and reviewed by the D.C. Circuit. The Justice Department applauded the court’s action, which followed its suggestion that the appeals should play out before the court takes up any more Guant�namo cases. “We are pleased with the Supreme Court’s denial of certiorari, which will permit the process established by Congress for reviewing detentions to proceed without further delay,” said department spokesman Erik Ablin. “That process includes an opportunity for judicial review before the D.C. Circuit.” Thomas Wilner, a lawyer for the detainees at the law firm of Shearman & Sterling, said he was “extremely disappointed” by the decision. “It relegates detainees to months of useless litigation to try to just get a fair hearing,” he said. The acquiescence of four of the nine justices is needed for the Supreme Court to hear a case, and three justices – Stephen Breyer, Ruth Bader Ginsburg and David Souter – favored taking the matter up. Dissenting from the court’s decision, Breyer, joined by Ginsburg and Souter, wrote that the court should have immediately taken the case, citing a 1968 decision emphasizing that the writ of habeas corpus should offer the detained an “effective and speedy” method to challenge their imprisonment. A number of Guant�namo detainees, Breyer noted, have been detained for more than five years. The court’s action was a rebuke to not only advocates for the detainees but also others, including Sen. Arlen Specter, R-Pa., who had urged the court to review the cases quickly. “The time is ripe for this court to address the constitutional infirmity of the MCA’s attempt to curtail the right of habeas corpus,” Specter wrote in a brief filed with the court. “Habeas must be restored to ensure that the rule of law prevails at Guant�namo.” A bill backed by Specter and a number of Democratic senators to restore habeas review is currently pending before the Senate Judiciary Committee. Some court observers have suggested that Stevens’ decision to not join the rest of the court’s liberal bloc in granting review of the case was a strategic one. The decisive vote in many of the court’s major terrorism-related cases has been Kennedy, and in deciding to effectively block the detainees’ cert petition, Stevens may have decided to wait for a case in which he can be more certain of Kennedy’s position. “He’s hoping to do better on another day,” said Richard Samp, a lawyer for the Washington Legal Foundation, a conservative group that filed briefs supportive of the Justice Department before the D.C. Circuit.

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