National Security

Israeli legal experts weigh in supporting Guantanamo detainees

With the U.S. Supreme Court set to take up Guantanamo detention policy again when its new term begins next month, the justices have received some unusual advice from a far-flung, friendly corner of the war-torn Middle East.

Israeli lawyers and military law experts have filed a brief that supports detainees in their quest for the right to have their cases heard in American courts. The Israeli lawyers argue that the Bush administration is making a mistake by trying to prevent the suspected terrorists being held at Guantanamo from filing cases in regular civilian or military U.S. courts.

"The issue here is, having been engulfed with terrorist activities from the beginning, from 1948, we learned a good lesson — if you want to remain a democracy you must be willing to let them have their day in court,'' says one of the lawyers, Emanuel Gross, a retired Israeli Army colonel and military judge who now teaches law at Haifa University Law School.

The Israelis' brief was among 19 friend-of-the-court petitions filed in the case of Boumediene v. Bush — which is the third Guantanamo case in four years to be heard by the Supreme Court.

The court had at first refused to hear the case, which challenges two acts passed by Congress in recent years that stripped U.S. District Courts of the authority to consider unlawful detention challenges from detainees at Guantanamo Bay.

But then in June the court reversed itself and said it would take the case — a rare reversal that shocked lawyers on both sides of the dispute. In the two other Guantanamo cases that the Supreme Court has heard, the detainees have won.

Nearly two dozen widely diverse interest groups have filed briefs siding with the prisoners, including former senior U.S. diplomats and military officers, Canadian and European lawmakers and lawyers, the federal public defender in South Florida, even Republican Sen. Arlen Specter of Pennsylvania.

They don't argue that the men are innocent but that they deserve their day in court.

The deadline to submit briefs was Aug. 24. Now the Bush administration and its supporters have until Oct. 9 to provide their briefs. Arguments are set for December.

The briefs are being written at a time of increasing discussion at the White House and in Congress about what to do with the detention and interrogation center at Guantanamo.

Gone from the Bush administration are the two biggest champions of Guantanamo, Donald Rumsfeld, who's been replaced as secretary of defense by Robert Gates, an advocate of closing the prison camp, and Alberto Gonzales, whose last day as attorney general was Friday. As White House counsel, he once declared the Geneva Conventions that set international standards for treatment of war prisoners as "quaint" in a memo that critics argue enabled abusive practices.

The case is named for Lakhdar Boumediene, a 41-year-old Algerian who was working as a relief worker in Sarajevo, Bosnia, when he was sent to Guantanamo in January 2002. He's been on a hunger strike since last Christmas.

U.S. forces spirited Boumediene and five other men from Europe to Turkey to Guantanamo for interrogation — after Bosnian police cleared them of plotting to blow up the U.S. Embassy in Sarajevo.

None has been charged with a crime.

All six men want to sue the U.S. administration for their freedom, but a federal judge in Washington, D.C., threw out their cases, saying that as Guantanamo captives they were not entitled to file so-called habeas corpus petitions.

The White House argues that indefinite detention of enemy combatants without recourse to civilian court is a war-on-terrorism necessity in a new and dangerous world.

By 2006, after U.S. civil liberties lawyers filed several hundred habeas corpus petitions, the Bush administration and sympathetic lawmakers accused the prisoners and their lawyers of undermining American justice by clogging the federal docket with their cases.

The Pentagon says it now holds about 340 men as enemy combatants at Guantanamo Bay, and has service members review their cases.

But the Israeli lawyers point out that Israel's nearly 60-year-old democracy has faced an almost unrelenting history of terrorism — and still lets dangerous captives individually challenge their detention all the way to Israel's High Court of Justice.

The Israelis boast in their 104-page brief that the Israeli army seized nearly 7,000 "suspected enemy combatants'' in the West Bank in May 2002, swiftly processed and freed more than 5,000 — and gave the remaining 1,600 suspects access to defense counsel and independent courts within weeks.

Ever since the U.S. opened the prison camps at Guantanamo, the Bush administration has rebuffed war-on-terrorism captives' efforts to file a traditional writ asking a federal court judge to review their case.

Many have never seen an attorney, among them the 16 "high-value'' captives, most of whom were held and interrogated for years at secret CIA "black sites.''

In contrast, Gross said, Israel must let a captive see a lawyer within 30 days — or justify an administrative detention that denies a captive rights to a civilian judge every three to six months.

Foreigners file briefs with the Supreme Court on international issues, said New York University law professor Stephen Schulhofer, a member of the Supreme Court Bar who filed the brief for the Israelis.

But he said the number of briefs filed in the Boumediene case was "probably unprecedented.'' He said the filings showed the "level of interest from all over the world" and was recognition "that what the United States does to foreign nationals it captures is something that resonates around the world.''