The Supreme Court, taking up its first challenge to the Bush administration's handling of the war on terrorism, agreed Monday to decide whether the president has the power to imprison hundreds of captured foreigners at the U.S. Naval Base at Guantanamo Bay, Cuba, without giving them a chance to show that they are innocent.
Over the objections of administration lawyers, the high court voted to hear an appeal filed on behalf of two Britons, two Australians and a dozen Kuwaitis who say they have been wrongly held in harsh confinement for nearly two years. The men assert that they were neither enemy soldiers nor terrorists, but that they have been denied a hearing to challenge their imprisonment.
Several of them have claimed that they were in Pakistan when U.S. troops invaded Afghanistan and that they had no role in fighting U.S. forces. "We believe they were civilians who were at the wrong place at the wrong time," said Joseph Margulies, a Minneapolis lawyer who filed one of the appeals along with the Center for Constitutional Rights, a legal and educational organization in New York.
The imprisoned men have been kept in solitary confinement and held by President Bush's commanders in "a law-free zone," cut off from their families and friends, in violation of the Geneva Convention and the U.S. Constitution, their lawyers told the high court.
Until Monday, courts rejected these complaints, which had received wide attention in Europe.
Administration officials say the president, as commander in chief, has the exclusive authority to decide what to do with "enemy aliens" captured abroad during a war. At the same time, the administration says the war on terrorism is not a true war and, therefore, Bush's military commanders need not abide by the terms of the Geneva Convention and its rules for prisoners of war.
In a stark claim of executive authority, administration lawyers also maintain that judges have no role in reviewing the plight of the prisoners at Guantanamo Bay. If these captured men are due any rights, wrote U.S. Solicitor General Theodore B. Olson, they "are to be determined by the executive [branch of government] and the military, not the courts."
"The extraordinary circumstances [in this case] implicate core political questions that the Constitution leaves to the president as commander in chief," Olson wrote in his response to the appeals. "The courts have no jurisdiction ... to evaluate or second-guess the conduct of the president and the military."
That argument prevailed in two lower courts, which had turned away the appeals filed on behalf of the Guantanamo detainees. In March, in the second ruling, the U.S. Court of Appeals for the District of Columbia Circuit said that foreigners held outside U.S. territory do not have a right to contest their detention in U.S. courts.
Its opinion described the base at Guantanamo Bay as the sovereign territory of Cuba, even though it has been occupied by the U.S. Navy since it leased the site in 1903.
Lawyers for the two sets of detainees appealed the question to the Supreme Court. In something of a surprise, the justices voted to hear both cases in order to decide whether the courts have "jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad."
Two former Bush administration lawyers who had clerked at the Supreme Court said they had not expected the justices to take up the issue.
"This is a surprising grant, given that the lower courts had spoken with one voice on this issue," said former Justice Department lawyer Viet Dinh, who teaches at Georgetown University Law School. He was the chief architect of the USA Patriot Act, which gave the government broad powers to combat terrorism-related activities.
"I still think they will uphold the government," said John C. Yoo, a UC Berkeley law professor, who was a legal advisor on terrorism issues at the Justice Department. "The court has been very leery of contradicting the executive branch in its management of the war during the war.
"The bigger issue underlying all this is delegitimizing terrorism. Al Qaeda is not a nation, so members of terrorist groups are not entitled to the protection of the laws of nations, and they're not entitled to the protection of the Geneva Convention. They get no hearing and no formal process of law," Yoo said.
Human rights activists say it is the U.S. that is operating outside of international law. "In essence, the court must decide whether the United States will reaffirm or reject its commitment to the rule of the law," said Michael Ratner of the Center for Constitutional Rights.
About 660 inmates have been held at Guantanamo in cells that measure 6 feet by 8 feet, the group said.
Their appeals were bolstered by a group of retired military officers and former prisoners of war who, in a friend-of-the-court brief, urged the justices to intervene.
"They are concerned that if we play games with the Geneva Convention, there will be a time when this comes back to bite the members of our military," said Donald Rehkopf, a military law expert in Rochester, N.Y.
The legal battle focuses on the words of the 5th Amendment: "No person shall be ... deprived of life, liberty or property without due process of law."
This provision generally means that the government may not hold someone without some legal process, such as charges and a hearing. And the high court has often stressed that it refers to "persons," not just U.S. citizens.
However, the court has also refused to extend that right outside the territory of the United States, raising the question of whether the U.S. Naval Base at Guantanamo Bay is within the jurisdiction of the United States.
The treaty spelling out the terms of the long-term lease says that while its "ultimate sovereignty" rests with Cuba, the "United States shall exercise complete jurisdiction and control over and within said areas."
As a practical matter, it is akin to U.S. territory, Rehkopf said. "If you fly to Guantanamo, you go through U.S. Customs. And children who are born there are deemed American citizens, not Cubans," he said.
The justices will hear arguments in March in the two cases, Rasul vs. Bush and Al Odah vs. United States. They are likely to rule by late June.
Even if the justices were to rule for the detainees at Guantanamo, it would not mean that the men would go free. Rather, the court might say the military must offer the detained men some "due process of law," such as a hearing or a trial.
Some lawyers believe that the Bush administration could have avoided the showdown in the Supreme Court had they given the men held at Guantanamo Bay a hearing before a military court.
In November 2001, two months after the terrorist attacks on the World Trade Center and the Pentagon, Bush issued an executive order asserting his authority to capture and hold "certain noncitizens in the war on terrorism." That order set off a controversy because the president said that suspected foreign terrorists would be tried by special U.S. military courts.
Since then, however, such courts have not been used.
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Terrorism-related cases that have reached the Supreme Court:
* Guantanamo Bay: The Supreme Court said Monday that it would decide whether hundreds of foreigners held at the Guantanamo Bay naval base in Cuba should have access to American courts. The cases are Rasul vs. Bush, 03-334, and Al Odah vs. United States, 03-343.
* Charities: The justices on Monday rejected an appeal that argued the government unconstitutionally froze the assets of Islamic charity Global Relief Foundation in late 2001. The Illinois charity's appeal was Global Relief Foundation vs. Snow, 03-46.
* Secrecy: The Supreme Court last week asked the Bush administration to explain the secrecy surrounding the detention of one of the immigrants arrested after the Sept. 11, 2001, attacks. The immigrant, known in court documents as M.K.B., is challenging secret court proceedings from Miami. The case is M.K.B. vs. Warden, 03-6747.
* Immigrant roundups: A pending appeal asks whether the government must disclose information about more than 700 immigrants arrested in the months after the terror attacks. The government won in lower court. The case is Center for National Security Studies vs. Department of Justice, 03-472.
* Enemy combatant in America: A pending appeal argues that the government is unconstitutionally holding Yaser Esam Hamdi in a naval brig in South Carolina without access to attorneys and without charges being filed against him. The government won in lower court. The case is Hamdi vs. Rumsfeld, 03-6696.
Source: Associated Press
Los Angeles Times