Justices to hear terror appeal

Can U.S. courts consider challenges to detentions?

First such review since 9/11

Case of 16 foreigners held in Guantanamo at issue

November 11, 2003|By Jan C. Greenburg | Jan C. Greenburg,CHICAGO TRIBUNE

WASHINGTON - Taking up its first terrorism-related case since the Sept. 11 attacks, the Supreme Court announced yesterday that it would decide whether foreigners being held at a U.S. military base in Cuba can turn to American courts to challenge their detention.

The justices agreed to hear a challenge on behalf of 16 detainees who were arrested during the war in Afghanistan. Lawyers for the men contend that U.S. courts should decide whether the government can continue holding them indefinitely, without informing them of any charges against them and without permitting them to consult lawyers, friends or family members.

Twelve of the men are Kuwaiti nationals, two are Australian, and two are British. They were captured in Pakistan and Afghanistan and are being held with more than 600 other detainees at the U.S. naval base at Guantanamo Bay, Cuba.

A District of Columbia-based federal appeals court threw out their claims in March, unanimously ruling that the U.S. courts lack jurisdiction to resolve whether their confinements are legal because the base is outside the United States.

In agreeing to hear the case, the justices said yesterday that they would focus on the narrow legal question of whether U.S. courts can consider challenges to the detention of foreign nationals captured abroad in connection with hostilities and being held at Guantanamo. They will not decide the broader question of whether that detention is legal.

Despite the narrow legal issue, lawyers involved in the case said it could shed light on how the court may approach other cases challenging the Bush administration's policies in the war on terror.

Federal appeals courts are weighing legal claims in other terrorism cases, including whether the government can designate American citizens as "enemy combatants" and hold them indefinitely without access to a lawyer. Those issues are unlikely to reach the court until its 2004-2005 term.

"Obviously, there are going to be a lot of clues that come out of this case," said Jeffrey E. Fogel, legal director of the Center for Constitutional Rights, which is representing the British and Australian detainees in the Supreme Court case. "The government is asking the court to show extraordinary deference to military determinations. The amount of deference the court shows will be instructive to other cases as well."

In papers urging the Supreme Court to hear the case, lawyers challenging the detentions argued that the United States "has created a prison on Guantanamo Bay that operates entirely outside the law."

But the Bush administration contended in legal papers that U.S. courts should not interfere with military affairs that are the concern of the political branches. It pointed to a line of Supreme Court cases since the World War II era to support that view.

The administration argued that that the litigation could seriously interfere "with the core war powers of the president" during a conflict. It notes that the litigation challenging the military detentions has arisen while American soldiers and their allies are fighting overseas against the Taliban, "an unprincipled, unconventional and savage foe."

National Security Adviser Condoleezza Rice defended the White House position during an interview yesterday with a Fox television affiliate in Atlanta.

"We believe that the law is on our side," Rice said. "We've always said with the detainees that they are being treated consistently with international law, and we believe that we're right in this."

The administration has aggressively defended its anti-terrorism policies and urged the justices not to take up the detainees' case. It also had asked the court to stay out of another post-Sept. 11 case involving the Illinois-based Global Relief Foundation, an Islamic charity accused of supporting terrorism.

The court declined yesterday to intervene in that case, letting stand a Chicago-based federal appeals court decision written by Judge Frank Easterbrook that the government had authority to freeze the group's assets.

In deciding whether to hear the legal arguments over the Guantanamo Bay detentions, the court was presented with a wide array of "friend of the court" briefs from civil liberties groups, military officers and World War II Japanese-American detainee Fred Korematsu.

Donald Rehkopf, who wrote a legal brief challenging the detentions for the National Association of Criminal Defense Lawyers, said the case could provide a significant statement on the scope of presidential powers.

The Chicago Tribune is a Tribune Publishing newspaper.

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