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Justices to Hear Case of Detainees at Guantánamo
By
Linda Greenhouse
The New York Times
November 11, 2003
WASHINGTON, Nov.
10 — Setting the stage for a historic clash between presidential
and judicial authority in a time of military conflict, the Supreme
Court agreed on Monday to decide whether prisoners at the United
States naval base at Guantánamo Bay, Cuba, are entitled
to access to civilian courts to challenge their open-ended detention.
The court said it
would resolve only the jurisdictional question of whether the
federal courts can hear such a challenge and not, at this stage,
whether these detentions are in fact unconstitutional. Even so,
the action was an unmistakable rebuff of the Bush administration's
insistence that the detainees' status was a question "constitutionally
committed to the executive branch" and not the business of
the federal courts, as Solicitor General Theodore B. Olson argued
in opposition to Supreme Court review.
In accepting the
cases, the court moved from the sidelines to the center of the
debate over whether the administration's response to the terrorist
attacks of Sept. 11, 2001, reflects an appropriate balance between
national security and individual liberty.
While the court does
not indicate why it grants review in a particular case, the justices
might well have been persuaded that no matter what the ultimate
answer to the question of whether judicial review is even available,
they are the ones who have to provide it.
"It is for the
courts and not the executive to determine whether executive action
is subject to judicial review," the appeal filed on behalf
of 12 Kuwaitis told the court.
The two appeals the
court accepted were filed on behalf of 16 detainees, the Kuwaitis
in one group and two Britons and two Australians in the other,
all seized in Afghanistan and Pakistan during United States-led
operations against the Taliban in late 2001 and early 2002. They
have all been held for more than 18 months without formal charges
or access to any forum in which they can contest the validity
of their detention.
The men assert that
they were not fighters either for the Taliban or for Al Qaeda;
most say they were humanitarian volunteers who were captured by
bounty hunters.
The two separate
lawsuits, seeking a federal court hearing on the validity of the
open-ended detention, were combined by the Federal District Court
here. That court then ruled, in a decision affirmed in March by
the United States Court of Appeals for the District of Columbia
Circuit, that on the basis of a World War II-era Supreme Court
precedent, the federal courts lack jurisdiction over the military
detention of foreigners outside United States territory.
The applicability
of that 1950 decision, Johnson v. Eisentrager, is at the heart
of the dispute before the Supreme Court. The justices also combined
the two cases, Rasul v. Bush, No. 03-334 (the Britons' and Australians'
case), and Al Odah v. United States, No. 03-343 (the Kuwaitis'
case), and will hear them in late March, with a decision expected
by early summer.
One central issue
is the status of the naval base at Guantánamo Bay, which
while indisputably a part of Cuban territory has been administered
by the United States under a 1903 lease that grants it many of
the attributes of sovereignty and uses the phrase "complete
jurisdiction and control."
By contrast, the
Eisentrager decision denied judicial review to German intelligence
agents who were captured in wartime China and were being held
in Germany after conviction as war criminals by military tribunals.
How to characterize
Guantánamo Bay is of such importance because it is clear
that noncitizens do have certain constitutional rights if they
are within United States territory. On the other hand, the court
has frequently invoked the Eisentrager precedent, even out of
its wartime military context, to stand for the proposition that
outside the territorial reach of the United States, aliens have
no such rights.
The brief filed for
the Britons and Australians by the Center for Constitutional Rights,
a liberal public interest law firm in New York, told the court
that "we alone exercise power at Guantánamo Bay"
and that the base should therefore be treated for jurisdictional
purposes as part of the United States. In the administration's
view, not only is that conclusion incorrect but it is not one
that the court is free to make. The determination of sovereignty
over a particular territory is "not a question on which a
court may second-guess the political branches," Solicitor
General Olson said in his brief.
It was evident on
Monday that this, too, was a question on which the justices want
to have the final word. That conclusion emerged from a comparison
of how the administration phrased the question presented by the
two cases with how the justices phrased it in their order granting
review. Solicitor General Olson said the question was whether
the federal courts had jurisdiction to decide the legality of
detaining "aliens captured abroad in connection with ongoing
hostilities and held outside the sovereign territory of the United
States at the Guantánamo Bay Naval Base, Cuba."
The Supreme Court,
by contrast, said it intended to decide the jurisdiction of the
courts to hear challenges to "the legality of the detention
of foreign nationals captured abroad in connection with hostilities
and incarcerated at the Guantánamo Bay Naval Base, Cuba."
The court's question incorporated no assumption about whether
the base was or was not "outside the sovereign territory
of the United States."
Pamela S. Falk, a
professor of international law at the City University of New York,
recalled on Monday that when she first visited the Guantánamo
base 10 years ago, she did not have to clear United States customs
on her return flight to Fort Lauderdale, Fla., an indication that
she was not considered to have left the United States at any time
during her journey.
But when she visited
again in July and returned by way of Puerto Rico, she had to clear
customs there, reflecting a policy change that she said should
not deprive the Supreme Court of the opportunity to decide "the
fundamental question of the rights of anyone being held in U.S.
custody."
If the justices decide
that the federal courts do have jurisdiction, the cases will go
back to district court in the first instance for a decision on
the merits of the detainees' claims. Lawyers for the Kuwaiti group,
from the law firm of Shearman & Sterling, describe what the
detainees are asking for as modest relief: to be informed of any
charges against them, to be allowed to meet with lawyers and family
members and to obtain "access to an impartial tribunal to
review whether any basis exists for their continued detentions."
Without those rights,
their brief says, their detention violates the Constitution as
well as domestic and international law.
Lawyers for the Britons
and Australians make similar arguments. Both cases were originally
filed as petitions for a writ of habeas corpus, the procedure
deeply rooted in English law for challenging confinement.
Several of the detainees
in these cases have been placed by the government in the first
group of the 660 Guantánamo detainees to go before military
commissions, when those operations begin in the coming months.
But even if some do get a hearing before a commission, their Supreme
Court cases would not become moot because the issue of access
to a civilian federal court would remain.
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