Afew months after the attacks of Sept. 11, 2001, the U.S. government transported almost 700 suspected terrorists who had been captured abroad to Guantanamo Bay Naval Base in Cuba, where the Bush administration assumed -- wrongly -- that they would have no opportunity to challenge their confinement in a U.S. court. But what if the alleged enemy combatants had been deposited somewhere else -- say, in a prison under the control of the CIA in Egypt or Poland?
Last week, the Bush administration's lawyer tried to convince the Supreme Court that the 300-some remaining detainees might as well be in Egypt or Poland because Congress has excluded Guantanamo from the reach of a federal statute authorizing prisoners to seektheir release by using the ancient writ of habeas corpus. Fortunately, a majority of the justices seemed skeptical of that claim. Even without a statute, prisoners held in the United States have access to habeas under the Constitution, which says that Congress may suspend the writ only in cases of rebellion or invasion. More important, as Justice Ruth Bader Ginsburg noted at last week's argument, the court ruled in the 2004 case of Rasul vs. Bush that Guantanamo was under the "exclusive jurisdiction and control" of the United States.
But Ginsburg, who was sympathetic to the detainees, raised a question that also concerned pro-administration justices and that highlights the stresses on traditional American liberties created by the unending, borderless war on terror. She asked Seth Waxman, the detainees' lawyer, if he would concede that "if they were in, say, Germany, that these detainees would have no access to habeas, no access to our courts?" Waxman, wary of a trap, replied that it would depend on whether the prisoners were being held by the United States or Germany. Justice Antonin Scalia then engaged Waxman in an argument over whether there was precedent in either English or American law for granting habeas "to an alien in a territory that was not under the sovereign control of the United States or England."
Scalia said no. But Scalia has been wrong before, and a brief filed by a group of legal historians noted that English courts in India could consider habeas applications from Indians even at a time when India wasn't sovereign British territory. The key factor was whether "the jailer ... was operating under the Crown or a Crown-charted organization." A majority of the justices seem to agree. In the Rasul case, Justice John Paul Stevens wrote for the court that "the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of 'the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.' "
Substitute "United States" for "Crown" and a suspected terrorist detained by the U.S. on foreign soil -- and not classified as a prisoner of war -- would have the right to challenge his confinement in a federal court. For the Bush administration and some conservative members of the court, this is the fate to avoid because it would involve the judiciary in overseeing the detention of suspected foreign terrorists abroad. At last week's argument, Chief Justice John G. Roberts Jr. suggested another problem with a worldwide reach for habeas: It could insert the courts into diplomatic negotiations between the United States and foreign countries where prisoners were under U.S. control.
These aren't trivial concerns. But, as Waxman pointed out, courts likely would decline to exercise authority if there were "military exigencies" -- for example, the imprisonment of a suspected terrorist on the battlefield. Waxman also conceded that a habeas court might be unable to act for "a limited time period." Yet, as he reminded the court, the detainees he represents "have been confined at Guantanamo for almost six years, yet not one has ever had meaningful notice of the factual grounds of detention."
The situation in Guantamano is manifestly unconstitutional. But would the predicament of those held there be any less unjust if they were being held in a prison in Egypt or Poland? We don't think so. On Friday the high court agreed to hear the appeals of two U.S. citizens of Arab descent held by the U.S. military in Iraq. American courts should offer a similar avenue of appeal to foreigners in American custody, wherever the jail.