The Supreme Court intervened for the first time in the war on terrorism, announcing today that it will review the legal status of the 660 suspected terrorists currently being held in near-total secrecy in a U.S. naval base at Guantanamo Bay, Cuba.
The court’s announcement sets the stage for a potentially historic ruling on the wartime powers of the President. The justices will probably rule by July.
In a brief order, the court said it would decide whether the federal courts have the power to hear challenges to their detention from some or all of the prisoners.
Most were captured by the U.S. and its allies during fighting in Afghanistan, and have since been held under conditions of near-total secrecy.
The Bush administration says that U.S courts have no jurisdiction over the prisoners, because they were captured in a foreign military conflict and because Guantanamo is not American but Cuban territory. Therefore, the administration argues, the prisoners can be held and interrogated for as long as President Bush considers it necessary to help win the war against the al Qaeda network and its allies. There is no role for the courts, the administration argues.
But international human rights groups and other critics say that there is no basis in either U.S. or international law for holding people indefinitely without giving them a hearing. They say that many of the detainees on Guantanamo were not involved in either al Qaeda or the Taliban, but were simply swept up in the chaos that enveloped Afghanistan as the U.S. moved in and the Taliban regime fell.
Yesterday’s Supreme Court order consolidated two challenges to the administration’s policy. The first case, Rasul v. Bush, No. 03-334, was brought by the parents of two British citizens, Shafiq Rasul and Asif Iqbal, and two Australians, Mamdouh Habib and David Hicks. The second case, al Odah v. U.S., No. 03-343 was brought by the relatives of 12 Kuwaiti nationals.
Both cases were dismissed by a U.S. district judge in Washington last year. Earlier this year, the U.S.Court of Appeals for the District of Columbia upheld that ruling without dissent.
The lower courts said that the issue was already settled by a 1950 Supreme Court ruling in which the court denied a writ of habeas corpus to German espionage agents who had been captured by U.S. forces in China in 1945 and later jailed in occupied Germany.
The Bush administration agreed, urging the Supreme Court not to take an appeal of the case, in part to avoid “judicial interference with military affairs.”
But lawyers for the Guantanamo detainees say the 1950 case was different, because the Germans had at least been convicted by a military commission, whereas today’s alleged terrorists have faced no legal process. Also, they argue that Guantanamo, though technically still Cuban territory, is so thoroughly under U.S. control that it should not be considered as alien as Chinese territory was in 1945.
The cases will be argued at the court early next year, and decided by July.