In one of the first major post-Sept. 11, 2001, cases to reach the United States Supreme Court, the nine justices this week heard arguments in a case brought by some detainees held in Camp X-Ray, Guantanamo Bay, Cuba. The legal issues are narrowly drawn but the implications and stakes, for both domestic and foreign policies, could hardly be more far reaching.
The case examines the jurisdictional issue of whether US courts have any oversight of the government’s handling of the detainees. The plaintiffs, citizens of Australia, Britain and Kuwait, are among about 600 inmates at Camp X-Ray, most allegedly captured during the invasion of Afghanistan or in Pakistan. The prisoners sought redress from civilian American courts on the lack of any mechanism by which they can challenge their detention and status as “enemy combatants.”
Even if they prevail, the case will not decide what kind of hearing process they should be afforded. The decision is likely to hinge on highly technical issues such as whether US law applies in Guantanamo, which has been under American control for over 100 years based on a perpetual lease which makes Cuba the “ultimate sovereign,” and whether there is a distinction in access to American courts between citizens and non-citizens detained outside the US.
However, the court’s ruling, which is expected by the end of June, is widely anticipated to set the tone for how it will view future civil liberties and human rights challenges to the George W. Bush administration’s “war on terror.”
It is the first in a series of contests in coming weeks and months pitting traditional American ideas of civil liberties and due process against the administration’s assertions of wartime exigency and executive authority. Next week the court will hear arguments involving the detention of US citizens as “enemy combatants,” and further difficult issues that lie beyond that.
The Guantanamo case is as much defined by its political context as its legal content, with the administration presenting itself as defending an embattled US up to the limits of the letter of the law but not beyond, and its critics charging that it has gone too far.
Solicitor General Theodore Olson encapsulated the administration’s appeal in the first sentence of his presentation: “The United States is at war.”
Olson’s presence in the court was itself a reminder of the horror of the Sept. 11, 2001 attacks, as his wife, the wellknown commentator Barbara Olson, was a passenger on American Airlines flight 77 which struck the Pentagon.
John Gibbons, lawyer for the detainees, argued that by denying US courts have any jurisdiction in Guantanamo Bay, the administration has set up a “lawless enclave,” and believes its “actions are absolutely immune from judicial examination.”
Many observers were struck by the degree of skepticism a number of the justices showed in their questioning of Olson. Justice John Paul Stevens immediately countered Olson’s invocation of war by asking if his arguments would be the same after the war is over. When Olson said they would, Stevens observed: “So the existence of the war is really irrelevant to the legal issue.”
Justice Stephen Breyer summed up doubts about the administration’s claims when he told Olson: “It seems rather contrary to an idea of a Constitution with three branches that the Executive would be free to do whatever they want … without a check.”
Not surprisingly, advocates of both sides claim to be upholding established legal norms.
Mark Moller of the libertarian Cato Institute told The Daily Star: “The Bush administration’s position is out of line with historical practice. Since the start of the Republic, courts have accepted habeas petitions from non-citizens in time of war and the federal habeas statute does not make such a distinction either.”
“History and geography suggest that such a complaint cannot be made,” countered Paul Rosenzweig of the conservative Heritage Foundation.
“There were never such hearings about detainees in Vietnam, and the US Constitution never applies outside the United States.”
According to Rosenzweig, “the only laws that apply in Guantanamo are international law, insofar as the United States has agreed to it, and US domestic law, to the extent the government says it does.”
Lee Casey, a Washington attorney who was part of a group of private legal experts who submitted a brief in support of the Bush administration, went further, saying that if the court asserted jurisdiction over foreign nationals held outside the US, “such a ruling could open the floodgates for individuals detained all over the world.”
Another friend of the court brief, filed by a group of US military veterans, sided with the detainees and urged the justices to consider what kind of precedent for Americans captured in conflict was being established by the treatment of the Guantanamo prisoners.
These concerns reflect another subtext to the case – international perceptions that Camp X-Ray represents an unacceptable violation of legal norms. Even the closest US allies, such as Britain and Australia, have expressed deep concern that their citizens are being held at Guantanamo without any legal protections, since their “enemy combatant” identification places them beyond the Geneva Conventions which apply to prisoners of war or any system of domestic laws.
Critics of the administration are quick to identify the foreign policy implications of the case. Professor David Cole of Georgetown University pointed out that “it is in the United States’ interests to deal with the detainees in a manner the world perceives as fair and just, and so far we have failed to do that.”
Rosenzweig acknowledged these concerns, but insisted “international perceptions have to take a back seat to security. If the choice is between annoying the French and keeping our country safe, I opt for the second.”
While Americans have been more sensitive to concerns of European allies about Camp X-Ray, international dismay over the detentions may be most damaging in the Middle East.
The identity of most of the Guantanamo prisoners is not known. As a Human Rights Watch report said, “the public still does not know who the detainees are, what they have allegedly done and whether and when they will be charged with crimes or released.”
It is believed that many of the detainees at Camp X-Ray are Arabs, since the US military operated under the assumption that foreign fighters in Afghanistan and northern Pakistan were Al-Qaeda members, and were regarded as posing a far more serious threat than locals.
Many Afghan troops were assumed to be low-level Taleban members, and were detained in Afghanistan. In many cases, they were simply disarmed and released from custody.
According to a survey by United Press International (UPI) published on April 2, “At least 160 of the 650 detainees acknowledged by the Pentagon as being held at … Guantanamo, Cuba … are from Saudi Arabia.”
UPI added “the other top nationalities being held are Yemen with 85, Pakistan with 82, Jordan and Egypt, each with 30.”
Jumana Musa, of Amnesty International’s Washington office, had a different view, telling The Daily Star: “It is thought that about one third of the detainees are from Yemen, but we can’t be certain of course.”
The spectacle of hundreds of Arabs being held under what are widely regarded as arbitrary and onerous conditions, plays strongly into the notion that the US war on terrorism is fundamentally unjust and involves a disregard for Arabs basic rights.
Growing perceptions in the Middle East lump the Guantanamo detentions with the invasions of Afghanistan and Iraq, US support for the policies of Israeli Premier Ariel Sharon and support for human rights abuses by Arab governments as evidence of a general American hostility to Arabs.
Moller argues that the Guantanamo detentions are particularly problematic “given our role in Iraq and our stance of democracy promotion in the Middle East.”
Many observers concluded that this ruling would be determined by the positions of centrist Justices Sandra Day O’Conner and Anthony Kennedy.
Cole, who has argued a number of important civil liberties cases before the Supreme Court, told The Daily Star: “It’s clear that at least four justices were decidedly sympathetic to the detainees’ arguments, and both of the swing justices expressed at least some sympathy.
“Many people walking out of the courtroom would predict that it will be close, but perhaps five-four in favor of the detainees.”