Published April 21, 2004
WASHINGTON – The Supreme Court (search) heard a key case in the War on Terror on Tuesday as justices heard appeals on whether enemy combatants at Guantanamo Bay can sue American courts to try to win their freedom.
The key question for the high court is: do U.S. courts have any jurisdiction over more than 600 men from 44 countries who are said to be members of Al Qaeda and Taliban and who are being held at the Naval base in Guantanamo Bay (search), Cuba?
Federal officials say absolutely not. Government lawyers say these men are a danger to the United States and the military should have the ability to keep them detained as long as they want.
In these cases the prisoners aren't asking for their freedom. They want the ability to bring a lawsuit inside the American courts that would argue for their freedom.
A lawyer for the men told the Supreme Court that the United States has created a "lawless enclave" at the military base in Cuba without access to American courts.
Attorney John Gibbons (search) said "it's been plain for 215 years" that people in federal detention may file petitions in U.S. courts.
The prisoners were mostly picked up in the fighting that toppled the Taliban government in Afghanistan and Pakistan in the months following the Sept. 11 attacks.
Chief Justice William H. Rehnquist (search) noted that the detainees are not on American soil, and asked how a judge in Washington is to deal with a case from Cuba.
Gibbons said the men should have some way to get their complaints before a judge. The United States holds the only real control over the Guantanamo Base, and U.S. law governs what happens there, Gibbons replied.
"No other law applies there. Cuban law doesn't apply there," he said.
Justice Antonin Scalia (search) said that if the courts are opened to cases from foreign combatants, battlefield detainees would try to use American courts.
Without oversight by U.S. judges, there would be no checks and balances on the president's power at Guantanamo, Justice Stephen Breyer (search) observed later.
"The executive would be free to do whatever they want," Breyer told the Bush administration's lawyer, Solicitor General Theodore Olson (search).
Not so, Olson replied. The United States routinely asserts temporary or nominal control over foreign territory such as military bases, he noted.
"It would be remarkable for the judiciary to start deciding," when and where the United States could do that, Olson said.
In addition to the jurisdictional issue raised by the Guantanamo case, the court next week takes up two related cases about the rights of American citizens labeled enemy combatants and held under similar restrictions.
The most important theme in all the cases is the power of the president to conduct a new kind of war as he sees fit.
Some spectators for Tuesday's argument camped out overnight, and a line of several hundred people snaked around the building.
In the Guantanamo case, the Bush administration's top Supreme Court lawyer argued in court filings that allowing the prisoners to go to court would "place the federal courts in the unprecedented position of micromanaging the executive's handling of captured enemy combatants from a distant zone."
The Bush administration asserts the right to hold and interrogate the men as long as necessary, without formal charges or the guarantee of a trial or access to a lawyer. The administration also asserts the men are not traditional prisoners of war, who would have guaranteed rights under the Geneva Convention.
The lawsuit before the high court was brought by lawyers who had not met their clients. Since then, a few Guantanamo detainees have been granted access to attorneys.
The lawyers say the men are in a nightmarish legal limbo. Furthermore, they say their clients had nothing to do with Sept. 11 and have never harmed Americans.
The cases are Rasul v. Bush, 03-334, and al-Odah v. United States, 03-343.
The Associated Press contributed to this report.