Dec 5, 2007 10:30 am US/Pacific
Supreme Court Considers Guantanamo Detainees
WASHINGTON (CBS News) ―
A lawyer for the detainees at Guantanamo
Bay underwent a barrage of questions
Wednesday from two conservative Supreme Court justices, with the attorney
portraying the case as a fundamental test of the U.S. judicial system.
The court plunged into the controversy over the military prison facility, where
305 prisoners are detained indefinitely in the Bush administration's battle
against terrorism.
Many of the prisoners "have been held ... for six years," attorney
Seth Waxman told the justices.
Under the current system, "they have no prospect" of being able to
challenge their detention in any meaningful way, said Waxman, arguing on the
detainees' behalf.
Chief Justice John Roberts and Justice Antonin Scalia questioned whether the
detainees are entitled to hearings in civilian courts.
"Show me one case" down through the centuries where circumstances
similar to those at Guantanamo
Bay entitled an alien to
challenge his detention in civilian courts, said Scalia.
Roberts challenged Waxman's argument that the duration of detention is
important.
Justice Anthony Kennedy, considered the pivotal fifth vote in the case if the
nine-justice court divides 5-4, raised the possibility of returning the issue
to the U.S. Court of Appeals in Washington,
where the detainees' status as enemy combatants is undergoing a highly
restrictive form of review.
Waxman argued that such a move would simply cause more delays in deciding the
prisoners' fate.
Over six years, there has been evidence many detainees were held on weak or
arbitrary charges, CBS News
correspondent Wyatt Andrews reports. Abdullah Kamel of Kuwait was held at Guantanamo for five years, partly on the
charge that his Casio watch was the same kind favored by al Qaeda.
"Until now, I don't know why they take five years from my life without any
reason," Abdullah said.
Lawyers for the foreign detainees contend the courts must get involved to rein
in the White House and Congress, which changed the law to keep the detainee
cases out of U.S.
courts after earlier Supreme Court rulings. The most recent legislation, last
year's Military Commissions Act, strips federal courts of their ability to hear
detainee cases.
"This is the next and probably not the last showdown between the court and
the other two branches of government over what rights terror detainees ought to
have," said CBS News legal analyst
Andrew Cohen. "The last cases, in 2004 and 2006, both resulted in
defeat for the White House and delay in processing through to trial hundreds of
men being held down in Cuba."
Waxman, the top Supreme Court lawyer during the Clinton administration, said that "after
six years of imprisonment without meaningful review, it is time for a court to
decide the legality" of their confinement.
The detainee case drew several hundred spectators who lined up outside the
courthouse in a light snow. About 50 had camped out overnight for a chance to
get inside to hear the arguments in the third case the Supreme Court has heard
since 2004 on the administration's detention program.
About two dozen protesters, some in orange prison-like jumpsuits, chanted and
waved signs.
"Restore habeas corpus!" they intoned, referring to the right to
court review of the legality of detention, the heart of the argument before the
high court.
Solicitor General Paul Clement, representing the administration, said
foreigners captured and held outside the United States "have no
constitutional rights to petition our courts for a writ of habeas corpus,"
a judicial determination of the legality of detention.
The case could turn on whether the court decides that Guantanamo
is essentially U.S.
soil, which would make the case for detainee rights stronger. Justice Anthony
Kennedy, widely considered a pivotal vote in this case, said as much in a
concurring opinion in Rasul v. Bush, the 2004 case that was the court's first
foray into the administration's detention policies.
"Guantanamo Bay
is in every practical respect a United
States territory," Kennedy said in the
earlier ruling.
The administration also argues that panels of military officers that
review the detainees' status as enemy combatants are adequate, even if the
Supreme Court decides they have the right to contest their confinement.
The justices, however, decided to review the issue in June, after having turned
down the detainees' appeal in April. They provided no explanation, but their
action followed a declaration from a military officer who criticized Combatant
Status Review Tribunals.
Meanwhile, in Guantanamo, a pretrial hearing was
scheduled for Salim Ahmed Hamdan, a native of Yemen accused of being a member of
al Qaeda and a driver for Osama bin Laden.
The hearing is expected to focus on the question of whether the American
military tribunal system has jurisdiction over Hamdan and can proceed to trial
more than three years after he was first charged.
Hamdan's lawyers are expected to argue that he is not an unlawful enemy
combatant but, instead, a prisoner of war, and entitled under the Geneva
Conventions to a U.S. military court martial - a system that detainee advocates
say has higher legal standards than the commissions proposed for Guantanamo
prisoners.
A top military legal official said the timing of the hearings in Guantanamo and Washington
is coincidental. He predicted that the Hamdan hearing is a signal the
long-stalled trials will soon be on the fast-track.
"We are moving with intensity and I expect things to pick up," Air
Force Brig. Gen. Thomas Hartmann, the legal adviser to the commission system,
told reporters at Guantanamo.
The United States has no
plans to put most of those held at Guantanamo
on trial. Just three detainees face charges under the Military Commissions Act
and the military has said it could prosecute as many as 80.
(© 2008 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)
