Skeptical Supreme Court ponders major Guantanamo case

McClatchy NewspapersDecember 5, 2007 

A bank of microphones gathers snow as the U.S. Supreme Court considers the right of Guantanamo prisoners to challenge their detention in civil courts.

CHUCK KENNEDY / MCT

WASHINGTON — Supreme Court justices sounded skeptical Wednesday about the Bush administration's treatment of foreign-born prisoners held at Guantanamo Bay, raising questions about the future of White House war-on-terrorism tactics.

In a potentially landmark case, at least four justices cast doubt on administration efforts to deny Guantanamo Bay detainees traditional legal rights. The justices repeatedly noted in oral argument that alleged enemy combatants held since 2001 have been barred from challenging their detentions through the centuries-old courtroom tool called habeas corpus.

"It's been six years, and habeas is supposed to be speedy," Justice Stephen Breyer said. "It's a serious problem."

But if questions are any guide, the unusually long oral argument Wednesday is setting up the court for another closely divided opinion, as conservative justices aligned themselves with the Bush administration's arguments about wartime necessities.

"We had 400,000 German prisoners — 400,000 — in our country in World War II," Justice Antonin Scalia noted, "and there was not a single habeas petition."

Justice Anthony Kennedy, who's considered a swing vote, didn't appear to favor either side and asked few questions.

The cases argued for more than an hour Wednesday present the highest-profile terrorism dispute to arise since Chief Justice John G. Roberts and Justice Samuel Alito joined the high court. Although a decision may be months away, the cases already come with great ceremony.

Demonstrators arrayed in orange prison-style jumpsuits stood silently outside Wednesday as snow began falling. Inside, lawmakers including Republican Sen. Lindsey Graham of South Carolina and Democratic Sen. Edward Kennedy of Massachusetts listened closely. Public relations specialists aggressively touted the availability of various professors and lawyers.

"We're very hopeful and optimistic," said Michael Ratner, the president of the Center for Constitutional Rights, which has been representing foreign-born prisoners.

The combined cases called Boumediene v. Bush and Al-Odah v. United States question whether the Constitution extends habeas corpus rights to the Guantanamo Bay prisoners, none of them U.S. citizens. If the answer is yes, the court also will address whether a military tribunal established by Congress and the Bush administration is a reasonable alternative to civilian courts.

Through a petition for a writ of habeas corpus, prisoners can demand the legal and factual basis for their imprisonment. The Constitution declares that habeas corpus rights can't be suspended "unless when in cases of rebellion or invasion the public safety may require it."

The Bush administration argues that the Constitution doesn't cover the approximately 304 men detained at Guantanamo Bay. Algerian native Lakhdar Boumediene, Kuwaiti native Fawzi Khalid Abdullah Fahad Al Odah and the other detainees were seized abroad and have never been held on the U.S. mainland.

"Do you have a single case in the 220 years of our country . . . in which habeas was granted to an alien in a territory that was not under the sovereign control of the United States?" Scalia asked the detainees' attorney, Seth Waxman, adding later that "there's not a single one in history."

Save for Scalia, other justices didn't seem to question whether constitutional rights extended to Guantanamo Bay. The Supreme Court previously held that Guantanamo was tantamount to U.S. property for legal purposes, and justices devoted relatively little time to rearguing the territorial question Wednesday.

"The United States exercises complete jurisdiction and control over the base," Waxman said. "No other law applies."

If the detainees have constitutional rights, the court must address the adequacy of the tribunal and review system as an alternative.

The Guantanamo Bay prisoners go through a three-member Combatant Status Review Tribunal. The U.S. Court of Appeals for the District of Columbia Circuit then can review the tribunal's proceedings.

The military panels can rely on classified evidence that isn't given to the prisoners, potentially including information obtained through torture. The prisoners have "personal representatives," but not lawyers. The tribunals' officers are required to assume that the government's information is genuine and accurate.

"It really represents the best effort by the political branch . . . to successfully prosecute the global war on terror," Solicitor General Paul Clement argued.

Breyer and Justice David Souter were particularly impassioned and dubious as they pressed Clement. Justices Ruth Bader Ginsburg and John Paul Stevens likewise appeared concerned about delays and unconvinced about the tribunal alternative.

"It's taken six years to have this issue resolved," Stevens said. "Isn't that relevant to the (government's) claims that there is such a wonderful set of procedures?"

Thirty-eight Guantanamo Bay prisoners were determined not to be enemy combatants and had been released after their tribunal hearings as of this summer, according to the Bush administration. About 390 men have been released or transferred from Guantanamo since 2002, the administration says.

A decision is expected by June.

McClatchy Newspapers 2007

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