Politics & Government

Guantanamo prisoners to ask Supreme Court for basic rights

Algerian-Bosnian Mustafa Ait Idir told both his lawyer and a military tribunal at Guantanamo that a squad of soldiers beat him viciously as he begged to keep his pants -- so that he could pray.
Algerian-Bosnian Mustafa Ait Idir told both his lawyer and a military tribunal at Guantanamo that a squad of soldiers beat him viciously as he begged to keep his pants -- so that he could pray. From the Miami Herald

WASHINGTON — Mustafa Ait Idir is no longer the man he was when Bosnian police set him on the rough road that's now reached to the U.S. Supreme Court.

The Algerian native says his bones were broken, his family fractured, his life these past six years stolen away.

The Bush administration characterizes the 37-year-old former computer expert and karate champion as an enemy combatant who planned to attack the U.S. Embassy in Sarajevo. Idir says he's an innocent man caught in the legal limbo of Guantanamo Bay.

"If I had a relationship with terrorism, I would tell you I am really a terrorist and I would not be concerned," Idir told military officers in September 2004. "When I tell you that I don't have a relationship, it is not because I am scared of you, it is because it is the truth."

Idir lost that argument. The evidence against him was classified, and he couldn't rebut it. But on Wednesday, he and other Guantanamo Bay detainees will get a fresh chance before the Supreme Court.

The accused men want the right to challenge their imprisonment through a writ of habeas corpus. They could end up changing how the United States manages its open-ended war on terror.

"These are incredibly significant cases," said Washington-based attorney David Cynamon, who represents some of the detainees. "They squarely present a constitutional question of the highest importance."

Multiple Guantanamo Bay cases are being combined for an hour-long oral argument Wednesday morning. The justices must first decide whether some 305 foreign-born prisoners are protected by constitutional habeas corpus guarantees.

Habeas corpus, which in Latin means "produce the body," is a 13th century tenet of law enshrined in the U.S. Constitution. It enables prisoners to demand in federal court the legal justification and factual basis for their detention.

If the justices decide that Guantanamo Bay prisoners enjoy habeas corpus rights, they must then decide whether Congress provided an acceptable alternative to federal courts by using special tribunals.

Together, the questions make Boumediene v. Bush and Al Odah v. United States highlights of the Supreme Court's emerging 2007-2008 term. They'll be the first cases of their kind to be decided by the court's newest justices, John G. Roberts and Samuel Alito. And they're electrifying the legal community.

Former officers, including the retired Marine Corps brigadier general who served as the technical adviser for the courtroom drama "A Few Good Men," have fired off competing amicus briefs. Historians summon dusty evidence, such as a 1775 case involving English prisoners held in Calcutta. Two dozen retired U.S. diplomats warn that "repressive governments" will take cues from the outcome.

"At stake," said Jonathan Hafetz, the counsel for the New York-based Brennan Center for Justice, "is the question of whether the United States can establish lawless enclaves, prisons beyond the law."

The Bush administration and its allies slant the cases differently, emphasizing wartime exigencies.

"Capturing and detaining enemy combatants in times of war is essential to effective military operations," retired Rear Adm. William Schachte declared in a brief. "Granting those detainees full-fledged habeas rights could compromise American military effectiveness."

The plaintiffs reached Guantanamo Bay in different ways. Six, including Idir and Lakhdar Boumediene, the former Red Crescent aid worker whose name leads one case, were Algerian natives who'd emigrated to Bosnia. There, U.S. officials claim, they associated with al Qaida operatives.

Others were seized in Afghanistan or Pakistan. For years, all have navigated the federal judiciary as Congress has periodically rewritten the rules of the game.

The Bush administration argues that the men don't enjoy habeas corpus rights because they're foreigners and not imprisoned on U.S. soil. The United States has leased the 45-square-mile Guantanamo Bay property from Cuba since 1903.

"The text and history of the (Constitution) demonstrate that it does not confer rights on enemy combatants seized by our military and held abroad," Solicitor General Paul Clement stated.

The arguments Wednesday will partly revolve around the Constitution's so-called Suspension Clause, which permits the writ of habeas corpus to be suspended only "when in Cases of Rebellion or Invasion the public Safety may require it."

In 2004, the Supreme Court ruled that the Guantanamo Bay detainees had a right to habeas corpus under a statute passed by Congress. Congress responded with a 2005 law that stripped federal courts of their jurisdiction, thereby blocking further habeas petitions. The Supreme Court then ruled that the 2005 law didn't apply retroactively to Guantanamo Bay petitions that had already been filed.

Again, Congress bounced back. In the Military Commissions Act of 2006, lawmakers blocked all Guantanamo Bay habeas corpus cases — past, present and future.

"There is a reason the Germans and the Japanese and every other prisoner held by America have never gone to federal court and asked the judge to determine their status," Sen. Lindsey Graham, R-S.C., declared during Senate debate. "That is not a role the judiciary should be playing."

Instead, the Guantanamo Bay detainees have their cases heard by a three-officer Combatant Status Review Tribunal.

The tribunals differ from standard civilian courts. Detainees are granted a military "personal representative," not a lawyer. Detainees can't see classified information used to justify their imprisonment. The tribunals can use information gained through torture.

Abdullah al Kandari, for instance, was a Kuwaiti electrical engineer seized along the Afghanistan-Pakistan border. He wore the type of Casio watch that's sometimes used in making explosives. American officials said his "alias" was found on a computer hard drive "associated with a senior al Qaida member."

The tribunal told Kandari the alleged alias was secret, as was the al Qaida member's identity.

"The problem is the secret information," Kandari replied, a transcript shows. "I can't defend myself."

Idir was equally frustrated when charged with associating with an unnamed al Qaida operative.

"Give me his name," Idir asked, according to a transcript.

"I do not know," the tribunal president responded.

"But I do not know if this person was a Bosnian, Indian or whatever," Idir said. "If you tell me the name, then I can respond and defend myself against this accusation."

"We are asking you the questions," the tribunal president insisted, "and we need you to respond."

Justice Anthony Kennedy is a likely swing vote in the case. Cynamon predicts that no matter what the outcome, there will be a 5-4 decision. Idir and the other plaintiffs won't be present at the hearing, as most remain locked in their individual Guantanamo Bay cells for up to 22 hours a day.

"I never had any problems with money, people, anything," Idir told his tribunal. "My life has changed completely. It has turned 360 degrees to this, where I am now."

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