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High Court to Rule on Terrorism Detainees

In the justices' first case on U.S. tactics in the war on terrorism, foreigners could win a chance to fight their detentions at Guantanamo Bay.

November 11, 2003|David G. Savage | Times Staff Writer

WASHINGTON — The Supreme Court, taking up its first challenge to the Bush administration's handling of the war on terrorism, agreed Monday to decide whether the president has the power to imprison hundreds of captured foreigners at the U.S. Naval Base at Guantanamo Bay, Cuba, without giving them a chance to show that they are innocent.

Over the objections of administration lawyers, the high court voted to hear an appeal filed on behalf of two Britons, two Australians and a dozen Kuwaitis who say they have been wrongly held in harsh confinement for nearly two years. The men assert that they were neither enemy soldiers nor terrorists, but that they have been denied a hearing to challenge their imprisonment.

Several of them have claimed that they were in Pakistan when U.S. troops invaded Afghanistan and that they had no role in fighting U.S. forces. "We believe they were civilians who were at the wrong place at the wrong time," said Joseph Margulies, a Minneapolis lawyer who filed one of the appeals along with the Center for Constitutional Rights, a legal and educational organization in New York.

The imprisoned men have been kept in solitary confinement and held by President Bush's commanders in "a law-free zone," cut off from their families and friends, in violation of the Geneva Convention and the U.S. Constitution, their lawyers told the high court.

Until Monday, courts rejected these complaints, which had received wide attention in Europe.

Administration officials say the president, as commander in chief, has the exclusive authority to decide what to do with "enemy aliens" captured abroad during a war. At the same time, the administration says the war on terrorism is not a true war and, therefore, Bush's military commanders need not abide by the terms of the Geneva Convention and its rules for prisoners of war.

In a stark claim of executive authority, administration lawyers also maintain that judges have no role in reviewing the plight of the prisoners at Guantanamo Bay. If these captured men are due any rights, wrote U.S. Solicitor General Theodore B. Olson, they "are to be determined by the executive [branch of government] and the military, not the courts."

"The extraordinary circumstances [in this case] implicate core political questions that the Constitution leaves to the president as commander in chief," Olson wrote in his response to the appeals. "The courts have no jurisdiction ... to evaluate or second-guess the conduct of the president and the military."

That argument prevailed in two lower courts, which had turned away the appeals filed on behalf of the Guantanamo detainees. In March, in the second ruling, the U.S. Court of Appeals for the District of Columbia Circuit said that foreigners held outside U.S. territory do not have a right to contest their detention in U.S. courts.

Its opinion described the base at Guantanamo Bay as the sovereign territory of Cuba, even though it has been occupied by the U.S. Navy since it leased the site in 1903.

Lawyers for the two sets of detainees appealed the question to the Supreme Court. In something of a surprise, the justices voted to hear both cases in order to decide whether the courts have "jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad."

Two former Bush administration lawyers who had clerked at the Supreme Court said they had not expected the justices to take up the issue.

"This is a surprising grant, given that the lower courts had spoken with one voice on this issue," said former Justice Department lawyer Viet Dinh, who teaches at Georgetown University Law School. He was the chief architect of the USA Patriot Act, which gave the government broad powers to combat terrorism-related activities.

"I still think they will uphold the government," said John C. Yoo, a UC Berkeley law professor, who was a legal advisor on terrorism issues at the Justice Department. "The court has been very leery of contradicting the executive branch in its management of the war during the war.

"The bigger issue underlying all this is delegitimizing terrorism. Al Qaeda is not a nation, so members of terrorist groups are not entitled to the protection of the laws of nations, and they're not entitled to the protection of the Geneva Convention. They get no hearing and no formal process of law," Yoo said.

Human rights activists say it is the U.S. that is operating outside of international law. "In essence, the court must decide whether the United States will reaffirm or reject its commitment to the rule of the law," said Michael Ratner of the Center for Constitutional Rights.

About 660 inmates have been held at Guantanamo in cells that measure 6 feet by 8 feet, the group said.

Their appeals were bolstered by a group of retired military officers and former prisoners of war who, in a friend-of-the-court brief, urged the justices to intervene.

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