ROBERT SIEGEL, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.
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And I'm Melissa Block.
The Supreme Court delivered a major surprise today just before the justices turned out the lights on this year's term. The court agreed to decide whether Guantanamo detainees can challenge their imprisonment. That reverses a decision the justices issued just two months ago.
NPR's Ari Shapiro begins our coverage.
ARI SHAPIRO: Supreme Court scholar Tom Goldstein says this morning's order is unprecedented in the high court's modern history.
Mr. TOM GOLDSTEIN (Attorney, Akin Gump, SCOTUSblog): It hasn't happened in decades that the justices turn a case down and then turn around and agree to decide it.
SHAPIRO: It was only last April that a divided court said it would not hear a case testing whether Guantanamo detainees can file lawsuits in American courts. Four justices said, no, we're not going to hear it. Three justices said they'd go for it, and then there were the two justices in the middle. John Paul Stevens and Anthony Kennedy said we won't take the case today, but maybe down the road after the president's process for evaluating enemy combatants plays out.
But now, just two months later without any major developments in the legal process at Guantanamo, the justices have changed their mind. Tom Goldstein.
Mr. GOLDSTEIN: What seems to have happened is that Justice Kennedy, in all likelihood, began to have even more serious doubts about that process, and whether the Supreme Court was inevitably going to have to step in, then might as well just go ahead and do it now.
SHAPIRO: Supporters of the Bush administration such as David Rivkin were not pleased with today's order. Rivkin's worked in the Justice Department and the White House under past Republican leaders.
Mr. DAVID RIVKIN (Former Justice Department Official): The biggest problem that has emerged in the last several months in this war, which I believe to be a real war - much more difficult than counterinsurgency in Iraq, difficult as it may be; much more difficult than dealing with our allies and third countries, difficult as it may be - is an overly aggressive, arrogant and imperialistic attitude of a judiciary that become engaged in scrutinizing military decisions to a level unheard of in our constitutional and political history.
SHAPIRO: In short, Rivkin says he's afraid the Bush administration will lose this case. For human rights groups, this morning's announcement was an unexpected gift. Michael Ratner is president of the Center for Constitutional Rights.
Mr. MICHAEL RATNER (President, Center for Constitutional Rights): This time, I hope it will be the final case in which the court really asserts that under the Constitution, detainees cannot be held without the right to challenge their detentions in court.
SHAPIRO: Given the current makeup of this court, Tom Goldstein says the outcome of this case will depend 100 percent on who can win over Justice Anthony Kennedy.
Mr. GOLDSTEIN: We know that the more conservative justices believe that this is a question that's within the prerogative of the president. We've seen that from earlier decisions. We can safely assume that the more liberal justices think the opposite, and it's Justice Kennedy that has to provide the decisive fifth vote as he did in every 5-4 case decided this term.
SHAPIRO: Note to interested parties: Justice Kennedy prefers chocolates from See's Candy company.
Ari Shapiro, NPR News, Washington.
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