The United States Supreme Court has agreed to weigh in on a key debate between personal liberty and national security. America's highest court said yesterday it will consider whether foreign prisoners held since the war in Afghanistan by U.S. forces at a Navy base in Cuba can challenge their imprisonment in U.S. courts.
Washington, 11 November 2003 (RFE/RL) -- The U.S. Supreme Court has agreed to hear appeals filed on behalf of two groups of detainees at the U.S. Navy base at Guantanamo Bay, Cuba. The cases have been brought on behalf of 12 Kuwaitis, two British citizens, and two Australians.
The decision marks the first time the Supreme Court will hear a case arising from the Bush administration's global war on terrorism and could prove to have larger implications regarding a U.S. president's power and reach during times of war.
It follows lower court rulings that said American civilian courts do not have the authority to hear complaints from some of the 600 foreign prisoners held in Cuba on suspicion of being Taliban or Al-Qaeda members after they were rounded up by U.S. forces in Afghanistan.
Lawyers for the detainees accuse Washington of running a prison that operates outside the law, where foreign nationals may be held indefinitely, without charges or evidence of wrongdoing and with no chance to establish their innocence.
The Supreme Court is expected to rule by June on the case, which was brought on behalf of the suspects by two separate groups, one of which is the Center for Constitutional Rights, a New York-based nonprofit organization.
The center's assistant legal director, Barbara Olshansky, said: "Never has America taken the public position that it is not bound at all by the rule of law. Such a dangerous and moral principle should not be established now."
Jeffrey Fogel is the center's legal director. He tells RFE/RL that the organization is guardedly optimistic about the Supreme Court decision.
"We have what the British court of appeals referred to as a legal black hole in Guantanamo," he said. "And it's something for which the United States has been severely criticized in most places in the world, and particularly in that part of the universe that cares about international human rights. So I think we're glad that the Supreme Court is going to take the case and give some guidance. And we're, of course, hopeful that the Supreme Court will decide it the right way."
At the heart of the case is whether Washington, in fact, has jurisdiction over the Navy base, which it has leased from Cuba for more than 100 years.
Last March, the U.S. District Court of Appeals in Washington, D.C., upheld a lower court determination that Cuba, and not the United States, has "sovereignty" over the base. For that reason, the appeals court concluded that U.S. courts are not open to the detainees.
In so ruling, the court deferred to the Bush administration on actions it has taken in the name of national security since the September 2001 attacks on America, which killed nearly 3,000 people.
But Fogel contends there is a clear distinction in the base lease between Cuba's "ultimate sovereignty" over the island itself and Washington's jurisdiction over the Navy base: "The lease was amended to provide that the United States would have -- and the words used in the treaty are that the United States has 'jurisdiction' over Guantanamo. What's reserved in the terms of the lease to the Cubans is something that's called 'ultimate sovereignty.' So the question isn't jurisdiction. The United States has jurisdiction there."
U.S. Solicitor General Theodore B. Olson, whose wife was killed in the 11 September attacks, urged the Supreme Court not to hear the appeals from the Guantanamo Bay detainees. The major function of the Solicitor General's Office is to supervise and conduct government litigation in the U.S. Supreme Court. Olson argued that the lower courts had properly interpreted a 53-year-old Supreme Court decision holding that foreigners "detained by the military abroad" have only those rights that are "determined by the executive and the military, and not the courts."
Praising the lower court's ruling on the issue last March, the top U.S. law enforcement official, Attorney General John Ashcroft, said: "In times of war, the president must be able to protect our nation from enemies who seek to harm innocent Americans."
Constitutional law expert Tom Goldstein believes the case could be of vital importance to U.S. constitutional law. Goldstein told CNN yesterday that this is an "incredibly important constitutional question that we need to know the answer to now and that we're going to need to know the answer to for centuries."
But lawyers for the detainees say there is more at stake than questions over the privileges of certain branches of the government during times of war.
"It's an even bigger issue than that, quite frankly," said Fogel. "It is the assertion of power by the United States to do anything it wants abroad without recourse to any legal forum. That's the broad proposition that's being asserted by the government here. I'm not suggesting they would do it, but the government's position would allow it to torture and summarily execute everybody in Guantanamo, and there would be no recourse. That is an untenable juridical situation."
Fogel says he knows virtually nothing about the facts in the cases of the British, Australian, and Kuwaiti prisoners that his organization is representing, such as their alleged membership in Al-Qaeda or the Taliban. He says that's because no one has been able to talk to the prisoners, whom he says probably don't even know where they are, let alone that their legal situation is going to be considered by the U.S. Supreme Court.
Fogel says his group wants the high court to rule that there must be jurisdiction in U.S. civilian courts to determine whether the suspects are being unlawfully detained by the United States. Secondly, he says that under international law, the U.S. must appoint some kind of tribunal to determine the exact status of the prisoners, something it has yet to do: "The proposition we have asserted all along is that the first thing that should happen -- and again, we're not making this up, this is right in the Geneva Conventions -- is that all prisoners taken during an armed conflict are presumed to be prisoners of war. If the occupying power or the power that is detaining the person thinks that they have some other status, they must convene what's called in international law a competent tribunal to determine what their status is."
Fogel says it is all but impossible to predict how the Supreme Court will rule. One scenario, he says, is that it could rule that the United States does have jurisdiction over the Navy base but send the case back to the lower courts, where the government could again argue that, for national-security reasons, nothing more should be pursued.
But the Supreme Court, he adds, could also offer detailed guidelines on how the government should proceed in the case.
While the outcome of this case will not be known for months, it will be years before it becomes clear whether some of the measures imposed after the 11 September attacks were really necessary to protect the security of the United States -- or if they will be regretted by later generations of Americans, as the World War II detainment of Japanese-Americans has been.