Amid a charged atmosphere at the Supreme Court on Wednesday, lawyers for prisoners held at Guantanamo Bay, Cuba, urged the justices to clear a legal thicket they say has prevented the government from determining which detainees pose a threat to the United States and which should be freed.
“The time for experimentation is over,” attorney Seth Waxman told the court.
Outside the court, dozens of protesters, some clad in prison-style orange jumpsuits, stood in the cold and snow to maintain that the prison at Guantanamo had become an international eyesore for the U.S.
The hearing was the latest in a six-year tug-of-war involving the Bush administration, Congress and the courts over whether suspected terrorists at Guantanamo are entitled to any sort of constitutional protection. The administration has consistently argued that it is the exclusive province of the White House and Pentagon to decide how to treat “enemy combatants” in wartime.
But every time the administration has made that case to the justices, it has lost resoundingly. While this case may be a closer call, many court observers expect a similar result.
The precise issue Wednesday was whether the remaining 300 or so foreign nationals at Guantanamo should be granted the right of habeas corpus — the opportunity to challenge their detentions in federal court — rather than be bound by the Pentagon’s determination of their status.
It appeared the court had settled this issue in 2004, when it ruled that the right of habeas corpus extended to the Navy base at Guantanamo, which, while on Cuban soil, is under U.S. control. But Congress, at the administration’s urging, reacted to that ruling by passing legislation that stripped the detainees of the habeas right.
The prisoners argue that Congress had no right to do so. But earlier this year, a federal appeals court rejected that argument, setting up Wednesday’s showdown.
Waxman asserted that a process such as habeas corpus was necessary because the Pentagon’s panels for classifying prisoners as enemy combatants, known as Combatant Status Review Tribunals, were “fatally flawed,” favoring the government and allowing the use of secret evidence.
His harshest critics were Justice Antonin Scalia and Chief Justice John Roberts Jr., both of whom seemed inclined to defer to Congress’ decision to strip the courts of jurisdiction to hear habeas claims.
Much of their critique revolved around whether a right of habeas corpus exists for foreign nationals independent of the law that Congress passed. That discussion gravitated to distant principles of English common law and invoked such 18th Century British legal icons as Lord Mansfield.
Scalia charged that Waxman didn’t have a single case “in the 220 years of our country” or five centuries of British law to support his argument. Waxman countered that he had several. “Line ’em up,” Scalia said.
Arguing for the government, Solicitor General Paul Clement said Congress’ actions were “the best effort of the political branches to provide additional process” for the detainees and suggested that they had been given greater rights than any similarly-held prisoners in American history. He also reiterated the administration’s long-standing view that “battlefield combatants can be detained indefinitely.”
Clement battled Justices Stephen Breyer and David Souter, both of whom voiced skepticism that the detainees could obtain a fair hearing under the current regime. Breyer attempted to reduce the dispute to its essence by asking Clement whether, at any time, a detainee could make the legal argument that keeping him for six years without charge violated the Constitution. “I’m not sure he can make that argument,” Clement answered.
“That happens to be the argument that these 305 people would like to make,” Breyer responded.
Souter noted that the new law did not specifically provide any mechanism for the release of detainees — meaning, he said, that a detainee simply could go through the process several times until he was classified an enemy combatant and held indefinitely.
Predictably, the key vote could come down to Justice Anthony Kennedy, who largely stayed quiet during the proceedings but who seemed concerned whether the court had the authority to provide some sort of legal remedy to the detainees. A ruling from the court is not expected for several months.
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Scalia, detainees’ lawyer joust in court
An excerpt from the argument before the Supreme Court over legal rights for detainees:
Justice Antonin Scalia: “Your assertion here is that there is a common law constitutional right of habeas corpus that does not depend upon any statute. Do you have a single case, in the 220 years of our, of our country or for that matter in the 500, the five centuries of the English empire, in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England?”
Lawyer Seth Waxman, representing the detainees: “The answer to that is a resounding yes.”
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joliphant@tribune.com
