Guantanamo detainees press right to hearings

Court hears 1st challenge to Bush administration's tactics in war on terror

April 21, 2004|By David G. Savage | David G. Savage,LOS ANGELES TIMES

WASHINGTON - The Supreme Court took up its first challenge to President Bush's powers in executing the war on terrorism as it weighed yesterday whether the more than 600 foreigners held at Guantanamo Bay, Cuba, have a right to plead their case before a judge.

A majority of the justices sounded skeptical of the administration's claim that the president - and the president alone - has control over the fate of these men.

It was the first of three cases to be heard this month that test whether the president can label certain prisoners as "unlawful enemy combatants" and deny them all rights under the law.

Next week, the court will consider whether the president can order the military to capture and hold without a trial two U.S. citizens who he says are enemy fighters. One of them was captured in Afghanistan; the other was arrested in Chicago.

Yesterday's argument focused on foreigners who were picked up in Afghanistan or Pakistan in 2001 and shipped to the U.S. naval base in Cuba. They have been held in solitary confinement and questioned repeatedly. They have been denied the right to speak with their families or lawyers, and they have not had a formal hearing at which they could challenge the basis for being held.

The administration has maintained that these Guantanamo detainees do not deserve to be treated as prisoners of war under the Geneva Conventions because they did not fight as soldiers in a conventional army.

But the result has been that these men have been held in what one lawyer called "a law-free zone," confined behind barbed wire and outside the protections of the international law of war and the civilian law of the United States.

Late last year, the Supreme Court, over the administration's objection, agreed to consider whether the Guantanamo detainees have a right to "get their foot in the door" in the U.S. courts, as one justice put it yesterday.

"They are saying, `Look, we are claiming that our people are innocents,'" said Justice Ruth Bader Ginsburg, referring to the families who sued on behalf of 16 Britons, Australians and Kuwaitis held at Guantanamo.

"All we want is some process to determine whether they are indeed innocent, and it doesn't have to be a court process," she said, summing up their case.

Said Justice Stephen G. Breyer: "I'm still honestly most worried about the fact that there would be a large category of unchecked and uncheckable actions dealing with the detention of individuals that are being held in a place where America has the power to do everything."

Justice Anthony M. Kennedy noted that the Habeas Corpus Act, which dates to 1789, gives all prisoners a right to ask a judge to hear their claims of innocence.

"The statute doesn't talk about citizens. It says prisoners held under the authority of the United States," Kennedy said.

The principle of habeas corpus arose in England. When prisoners were thrown in the king's dungeon, a judge could issue a writ demanding that the prisoner be brought before him. This principle - that the judge has the power to decide whether the prisoner is held lawfully - is the basis for the challenge mounted on behalf of the Guantanamo detainees.

Retired Judge John Gibbons, arguing on behalf of the Guantanamo detainees, agreed with Kennedy that American law from the beginning has given all prisoners a right to contest their innocence before a judge.

"It's been plain for 215 years," he said. "Our position is that the habeas corpus statute has meant what it said since 1789."

But when pressed, Gibbons conceded that the habeas corpus law did not extend to "a zone of active military operations or an occupied area under martial law." That left an unspoken question: If the right to habeas corpus did not extend to the battlefields or military prison camps, why did it extend to Guantanamo Bay?

Defending the Bush administration, U.S. Solicitor General Theodore B. Olson sharply challenged the notion that civilian law extends to the battlefields in the war on terror.

"The United States is at war," he said. And in wartime, the president as the commander in chief of the armed forces has the power to hold prisoners who are captured on the battlefield. Moreover, Congress voted for a resolution in 2001 that authorized Bush to "use all necessary and appropriate force" to fight terrorists and their allies, he said.

Judges have no authority to interfere, Olson said, especially where the prisoners are not Americans and they are being held outside of the sovereign territory of the United States.

The government maintains that the naval base at Guantanamo Bay is part of Cuba, even though it has been occupied by the United States for more than a century.

"The question of sovereignty is a political decision. It would be remarkable for the judiciary to start deciding where the United States is sovereign and where the United States has control," Olson said.

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