High Court Hears Case on Detainees

The Supreme Court on Tuesday took up its first challenge to President Bush’s powers in executing the war on terrorism as it weighed whether the more than 600 foreigners held at Guantanamo Bay, Cuba, have a right to plead their cases before a judge.

A majority of the justices sounded skeptical of the administration’s claim that the president -- and the president alone -- had control over the fate of the captives.

The prison at the U.S. Navy base at Guantanamo Bay has emerged as a preeminent symbol of the Bush administration’s tough tactics, and the president has much riding on the outcome. The court is expected to rule by the end of June.

Late last year, the court, over the White House’s objection, agreed to consider whether the men detained at Guantanamo had a right to “get their foot in the door” in U.S. courts, as Justice Stephen G. Breyer put it Tuesday.

Said Justice Ruth Bader Ginsburg: “They are saying, ‘Look, we are claiming that our people are innocents,’ ” referring to the families who sued on behalf of 16 Britons, Australians and Kuwaitis being held at Guantanamo. “All we want is some process to determine whether they are indeed innocent, and it doesn’t have to be a court process,” she said, summing up their case.

Chief Justice William H. Rehnquist and Justice Antonin Scalia sided with the government’s argument. They cited World War II-era rulings that said “enemy aliens” held overseas had no right to have their cases reviewed in U.S. courts. Justice Clarence Thomas is likely to join them.

The case is the first of three to be heard this month that will test whether the president can label certain prisoners “unlawful enemy combatants” and deny them all rights under the law.

Next week, the court will consider two cases that address whether Bush can order the military to capture and hold without trial two American citizens who he says are enemy fighters. One of them was captured in Afghanistan; the other was arrested in Chicago.

Tuesday’s argument focused on foreigners who were picked up in Afghanistan or Pakistan in 2001 and shipped to the U.S. Navy base in Cuba. They have been held in solitary confinement and questioned repeatedly. They have been denied the right to speak with their families or lawyers, and they have not had a formal hearing at which they could challenge the basis for their confinement.

The administration has maintained that the detainees did not deserve to be treated as prisoners of war under the Geneva Conventions, because they did not fight as soldiers in a conventional army.

But the result has been that the men have been held in what one lawyer called “a law-free zone,” confined behind barbed wire and outside the protections of both the international law of war and the civilian law of the United States.

Said Breyer: “I’m still honestly most worried about the fact that there would be a large category of unchecked and uncheckable actions dealing with the detention of individuals that are being held in a place where America has the power to do everything.”

Justice Anthony M. Kennedy noted that the Habeas Corpus Act, which dates to 1789, gives all prisoners a right to ask a judge to hear their claims of innocence.

“The statute doesn’t talk about citizens. It says prisoners held under the authority of the United States,” Kennedy said.

The principle of habeas corpus arose in England. When prisoners were thrown in the king’s dungeon, a judge could issue a writ demanding that the prisoner be brought before the court. This principle -- where a judge has the power to decide whether a prisoner is held lawfully -- is the basis for the challenge mounted on behalf of the Guantanamo detainees.

John Gibbons, a retired judge representing the Guantanamo detainees, agreed with Kennedy that American law from the beginning had given all prisoners a right to proclaim their innocence before a judge.

“It’s been plain for 215 years,” Gibbons said. “Our position is that the habeas corpus statute has meant what it said since 1789.”

When pressed, Gibbons conceded that the habeas corpus law did not extend to “a zone of active military operations or an occupied area under martial law.” That left an unspoken question: If the right to habeas corpus did not extend to the battlefields or military prison camps, why did it extend to Guantanamo Bay?

Defending the Bush administration, U.S. Solicitor Gen. Theodore B. Olson sharply challenged the notion that civilian law extended to the battlefields in the war on terrorism.

“The United States is at war,” Olson said. And in wartime, the president, as the commander in chief of the armed forces, has the power to hold prisoners who are captured on the battlefield. Moreover, Congress voted for a resolution in 2001 that authorized Bush to “use all necessary and appropriate force” to fight terrorists and their allies, he said.

Judges have no authority to interfere, Olson said, especially when prisoners are not Americans and are being held outside the sovereign territory of the United States.

The government maintains that the Guantanamo Bay base is part of Cuba, even though it has been occupied by the United States since the U.S. Navy leased the site more than a century ago.

“The question of sovereignty is a political decision. It would be remarkable for the judiciary to start deciding where the United States is sovereign and where the United States has control,” Olson said.

But Justice David H. Souter said: “Bringing people from Afghanistan or wherever they were brought to Guantanamo, we are doing in functional terms exactly what we would do if we brought them to the District of Columbia, in a functional sense, leaving aside the metaphysics of ultimate sovereignty.”

The rest of the justices took turns disputing parts of the government’s case. They also suggested that they were inclined to rule narrowly.

“Why not say, ‘Sure, you get your foot in the door, prisoners in Guantanamo, and we’ll ... work out something that’s protective but practical.... It’s possible to tailor the substance to take care of the problems that are worrying you,” Breyer told Olson.

Breyer and others seemed to be searching for a middle-ground position that would give the detainees some sort of hearing -- perhaps before a military court -- but would not give them an open-ended right to bring their cases to a federal court in Miami or Washington.

The lawyers also spent part of the hour arguing over whether Guantanamo Bay is sovereign territory of the United States. If it is deemed to be U.S. territory, the federal courts would be seen as having jurisdiction. If it is not U.S. territory, the detainees may be barred from seeking help in the courts.

But the uncertainty of its sovereignty status is not likely to stand in the way of the majority. If most of the justices think the detainees deserve a hearing, they are likely to say that Guantanamo Bay is U.S. territory for all practical purposes. If they think the court should not get involved, they are likely to say the Navy base is technically in Cuban territory, and therefore outside the purview of U.S. courts.

After the Supreme Court agreed to hear the Guantanamo case, the Bush administration retreated somewhat and said it planned to bring the detainees before a military court. The change was barely mentioned during Tuesday’s argument, and it was not clear whether it could affect the outcome.

A ruling in the Guantanamo cases may have more symbolic importance for the detained men. If the high court sides with them, the decision will stand as a major statement about the importance of the rule of law even in times of war.

But they may win only the right to have a hearing before a military judge at Guantanamo, which the Bush administration seems ready to offer them.

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‘Sovereignty Is a Political Decision’

SUPREME COURT EXCERPTS

John Gibbons, representing the Guantanamo Bay captives: “What is at stake in this case is the authority of the federal courts to uphold the rule of law. Respondents [the government] assert that their actions are absolutely immune from judicial examination whenever they elect to detain foreign nationals outside our borders. Under this theory, neither the length of the detention, the conditions of their confinement, nor the fact that they have been wrongfully detained makes the slightest difference. Respondents would create a lawless enclave insulating the executive branch from any judicial scrutiny now or in the future.”

Solicitor General Theodore B. Olson, representing the Bush administration: “The United States is at war. Over 10,000 American troops are in Afghanistan today in response to a virtually unanimous congressional declaration of an unusual and extraordinary threat to our national security, and an authorization to the president to use all necessary and appropriate force to deter and prevent acts of terrorism against the United States.”

Justice Anthony M. Kennedy: “The statute doesn’t talk about citizens. It says prisoners held under the authority of the United States. Now, if the citizen can say that he is a prisoner held under the authority of the United States in Guantanamo, why wouldn’t a noncitizen under the statute say the same thing?”

Olson: “We are not saying that there necessarily would be jurisdiction there we are saying that we would not be contesting it, Justice Kennedy, and the court will be dealing with other issues involving citizens.”

Chief Justice William H. Rehnquist: “Our doctrine would have to be applied in the first instance by 800 different district judges, I take it.”

Olson: “Well, there is no question that that is exactly right. And to the extent that what the petitioners are seeking is to oversee the circumstances -- this is the language in their brief, to oversee the circumstances of detention. That is going to vary from case to case.”

Justice Ruth Bader Ginsburg: “[They] are not asking for any of those things, and certainly not asking to have a lawyer there while these people are being interrogated. They are saying, ‘Look, we are claiming that our people are innocents.’ And for purposes of this proceeding, we must assume that. And all we want is some process to determine whether they are indeed innocent, and it doesn’t have to be a court process.”

Olson: “The question of sovereignty is a political decision. It would be remarkable for the judiciary to start deciding where the United States is sovereign and where the United States has control.”

Ginsburg: “The word is physical control.”

Olson: “We have that in every place where we would put military detainees -- in a field of combat where there are prisons in Afghanistan where we have complete control with respect to the circumstances.”

Justice David H. Souter: “But Afghanistan is not a place where American law is, and for a century, has customarily been applied to all aspects of life. We even protect the Cuban iguana. Bringing people from Afghanistan or wherever they were brought to Guantanamo, we are doing in functional terms exactly what we would do if we brought them to the District of Columbia, in a functional sense, leaving aside the metaphysics of ultimate sovereignty. If the metaphysics of ultimate sovereignty do not preclude us from doing what we have been doing for the last 100 years, why is it a bar to the exercise of judicial jurisdiction under the habeas statute?”

Kennedy: “Forgetting the Geneva Convention, what happens when the person comes before the court? You prevail and there is a writ of habeas corpus, it comes here, and the judge says, ‘Now what am I supposed to do?’ ”

Gibbons: “What the judge is supposed to do is determine first whether or not the government’s response that the detention is legal is in fact an adequate response. Now, the government in this case probably will respond, ‘We don’t have to give the hearings required by the Geneva Convention.’ But if you’re going to treat a binding United States treaty as the supreme law of the land, that is not an adequate answer.”

Gibbons: “The Court of Appeals did rely on some mystical ultimate sovereignty of Cuba over, as we Navy types call it, Gitmo, treating the Navy base there as a no-law zone. Now, Guantanamo Navy base, as I can attest from a year of personal experience, is under complete United States control and has been for a century.”

Ginsburg: “We don’t need your personal experience. That’s what it says in the treaty. It says complete jurisdiction.”

Gibbons: “That’s exactly what it says.”

These excerpts from Tuesday’s oral argument were transcribed by Alderson Reporting Co. and obtained from Associated Press.