The writ of habeas corpus allows U.S. citizens being held in jail to go before a judge to challenge their imprisonment. In a historic argument to be heard by the Supreme Court on Tuesday, detainees captured in Afghanistan and now imprisoned at the U.S. Naval Base in Guantanamo Bay in Cuba are asserting the same right to challenge their detention.
Lawyers for the detainees say they are being held in a case of mistaken identity and should be granted habeas corpus so they can go before a judge who could order their release.
“The four Petitioners have never been enemy aliens or unlawful combatants,” according to the brief for Pakistani citizen Shafiq Rasul and three other detainees.
“The four Petitioners had no involvement, direct or indirect, in any terrorist act, including the attacks of September 11, 2001. They maintain … that they are innocent of wrongdoing, and the United States has never presented evidence to the contrary,” said the brief.
The Guantanamo detainees, it said, “have been cast into a legal limbo, held … without charges, without recourse to any legal process, and with no opportunity to establish their innocence.”
The Supreme Court will not address the question of whether the detainees are al-Qaida or Taliban members.
Instead it will decide whether the writ of habeas corpus extends outside the borders of the United States to cover non-citizens such as Rasul whom the president has deemed “enemy combatants.”
If the detainees win, it would be first time the Supreme Court has ever permitted foreigners held outside the U.S. to use habeas corpus to challenge military detention.
Dire effect of ruling?
Allowing the detainees court hearings in the United States could have disastrous effects on the war against al-Qaida and other terrorist groups, according to a group of lawyers called Citizens for the Common Defence, which filed a friend of the court brief in the case.
Similar court hearings “would, of course, have to be extended to all similarly situated detainees — most of whom are unquestionably Taliban or al Qaeda terrorists and many of whom may possess information critical to the war effort or to preventing further mass casualty attacks in the United States.” Once given lawyers for their habeas hearings, the detainees would refuse to answer questions from interrogators “knowing that they had a court case pending that might result in their freedom,” according to Citizens for the Common Defence.
Another group of former government officials who weighed in on the case warned that extending the writ of habeas corpus to Guantanamo would mean extending it “even to combat zones such as Iraq. ... There would be no apparent limit to this ‘globalization’ of the writ of habeas corpus.”
“The Constitution is a great document, but it isn’t a world constitution,” said David Rivkin, a Washington lawyer and former official in the first Bush administration. Rivkin said if the Supreme Court finds that federal court jurisdiction extends to Guanatanamo, it raises the prospect that detainees there might also have the right to sue the government for money damages.
Holding foreigners 'forever'
In a mirror-image argument, the detainees’ advocates say that if the court agrees with the Bush administration’s argument, it “would allow it to capture any foreign national anywhere in the world at any time and to detain him or her at Guantanamo without process or possibility of judicial review, forever.”
The Guantanamo case resembles a Supreme Court case on the fate of Germans stationed in China who, after surrender of the Nazi regime in May of 1945, passed intelligence information to the Japanese, who were still fighting the United States.
The Germans were tried by a U.S. military commission in China, convicted, and jailed in Germany.
In the 1950 Supreme Court decision, Johnson v. Eisentrager, the justices rejected the idea that non-citizens detained by U.S. military authorities outside the United States, such as the Germans, could use the writ of habeas corpus to challenge their detention.
“Nothing in the text of the Constitution extends such a right, nor does anything in our statutes,” said the court.
The predicament facing the Guantanamo detainees today was described in 1950 by Justice Hugo Black, who wrote the dissenting opinion in Johnson v. Eisentrager.
Rights depend on location
“Does a prisoner's right to test legality of a sentence depend on where the Government chooses to imprison him?” asked Black.
He said the Court should not “permit the executive branch, by deciding where its prisoners will be tried and imprisoned, to deprive all federal courts of their power to protect against a federal executive's illegal incarcerations.”
To win their case, the detainees must convince the court that the Guantanamo base, which was leased from Cuba in 1903, is somewhat like the Philippines in 1945, a U.S. territory in which Constitutional protections applied.
Gen. Tomoyuki Yamashita, the Japanese commander in the Philippines who had been convicted in 1945 by a U.S military tribunal of allowing his troops to commit atrocities, was able to go before the Supreme Court to challenge the legality of the tribunal. Why? Because his case had originated in the Philippines, which were then still sovereign U.S. territory.
It is clear that a major reason the Bush administration chose to put the detainees at Guantanamo was because it is not U.S. territory. Therefore the federal courts have no jurisdiction there. Or do they?
Although the 1903 lease itself says Cuba retains “ultimate sovereignty” over the base, there have been some cases in which federal courts have ruled on disputes occurring at the base. But these cases only dealt with U.S. citizens.
Yet lawyers for the detainees argue that since the United States exercises control in Guantanamo, it ought to recognize the writ of habeas corpus there as well.
“This is a case the government could lose because the government has done something here they’ve never done before,” said New York University law school professor David Golove, an expert in constitutional law.
Will all detainees be tried?
In previous similar cases, such as Yamashita and Eisentrager, the prisoners were tried before a military tribunal with lawyers defending them.
So far none of the Guantanamo detainees has been tried, although the president and Defense Secretary Donald Rumsfeld have issued rules for the conduct of tribunals, which include the right to counsel and access to exculpatory evidence.
“The Supreme Court has felt comfortable as long as they (military detainees) are in an alternative system,” such as a military tribunal, said Golove.
But the Bush administration has not committed itself to putting all of the detainees on trial. It is possible that many of them may be held indefinitely without trial.
The administration has decided that whether or not to hold tribunals in specific cases should be up to the executive branch and not to the federal courts.
“What the executive is doing here is claiming to be free of all supervision,” said Golove, calling it “a very high-risk strategy.”