MELISSA BLOCK, host:
This is ALL THINGS CONSIDERED from NPR News. I'm Melissa Block.
Today, the U.S. Supreme Court refused to review a federal law that strips Guantanamo Bay prisoners of the right to challenge their detentions in court.
NPR's Nina Totenberg reports the action delivered a major, though temporary, victory to the Bush administration.
NINA TOTENBERG: Last year, the Supreme Court ruled that the procedures for military tribunals at Guantanamo were unconstitutional because, among other things, they had been set up by the president without approval by Congress. In response, the Bush administration sought and Congress approved a law that set up military commissions and stripped the federal courts of jurisdiction to hear cases brought by all the detainees.
The law was upheld by the U.S. Court of Appeals for the District of Columbia and the detainees appealed to the U.S. Supreme Court. But today the justices refused to hear the case, leaving the lower court ruling intact at least for now. David Rivkin, who served in the Reagan White House, sees the court's action as a vindication for the Bush administration.
Mr. DAVID RIVKIN (Former Justice Department Official): This is a very consequential decision because it tells you basically that the effort to facially challenge the constitutionality of the key provisions of Military Commissions Act of 2006 is at an end.
TOTENBERG: David Reems, who represents 11 Yemenis who've been detained indefinitely at Guantanamo, agrees to a large extent.
Mr. DAVID REEMS (Attorney): I do think this was a case of judicial duck and cover. The practical effect of the decision is to close the door for meaningful judicial review for the foreseeable future.
TOTENBERG: With the justices closely divided on the question, two justices, Kennedy and Stevens, cast the deciding votes to stay out of the case but wrote to highlight that it's only for now. They said the court should wait and see how the detainee cases are handled in practice by the lower courts. Georgetown law professor Martin Lederman sees Kennedy's vote as pivotal.
Professor MARTIN LEDERMAN (Law, Georgetown University): If either side of the court had been certain that he would vote with them, the court would have granted certiorari. But obviously they weren't because he wasn't tipping his hand as to which way he was going to go. Justice Kennedy might be hoping that the political branches - the president and the Congress - can between them resolve this question without the need for the court to intervene.
TOTENBERG: And with Secretary of Defense Robert Gates publicly and Secretary of State Condoleezza Rice privately urging that Guantanamo be closed, there's a sense that even though President Bush vetoed that idea, the next president will not. For now, what happens is that the detainees cases will go back to the court of appeals, which, under the Detainee Treatment Act, is designated as the only court to review detainee proceedings. The appeals court, however, has only limited jurisdiction. It cannot hear any new evidence and must accept the evidence of combat status review panels set up by the military to determine whether a prisoner is an enemy combatant. And as lawyer David Reems observes, this appeals court has already given a very narrow reading to the existing law.
Mr. REEMS: Well, it seems like a futile exercise because this court which will be reviewing the claims has already determined that these detainees have no constitutional rights in the first place.
TOTENBERG: There may of course be individual cases in which the court could decide the evidence against a particular detainee is insufficient. Indeed, there have been a number of cases in which a detainee is found innocent under the existing military process, only to be re-cycled through successive combat status review hearings until there's a finding that the detainee is an enemy combatant. And eventually, in a year or two, there is every likelihood that in some form these cases will be back at the Supreme Court.
Georgetown law professor Neal Katyal, who successfully challenged the military commissions last year, notes that the whole system at Guantanamo remains in doubt.
Professor NEAL KATYAL (Law, Georgetown University): What it means practically is that this cloud of uncertainty hangs over Guantanamo. The most simple question - does the constitution protect people at Guantanamo in any way, shape or form - is still left hanging unanswered.
TOTENBERG: Nina Totenberg, NPR News, Washington.