WASHINGTON, 21 April 2004 — The United States has created a “lawless enclave” at a military base in Cuba where more than 600 men from 44 countries are being held without access to American courts, a lawyer for the men told the Supreme Court yesterday.
Attorney John Gibbons said “it’s been plain for 215 years” that people in federal detention may file petitions in US courts.
The prisoners in Guantanamo Bay, Cuba, were mostly picked up in the fighting in Pakistan and in Afghanistan that toppled the Taleban government in the months following the Sept. 11 attacks. The government has labeled them “enemy combatants.”
Their appeal, the first major challenge arising from the US war on terror to reach the high court, asks a basic legal question: Can foreign-born prisoners picked up overseas and held outside US borders use American courts to try win their freedom?
Chief Justice William H. Rehnquist 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 US law governs what happens there, Gibbons replied.
“No other law applies there. Cuban law doesn’t apply there,” he said.
Without that oversight by US judges, there would be no checks and balances on the president’s power at Guantanamo, Justice Stephen Breyer observed later.
“The executive would be free to do whatever they want,” Breyer told the Bush administration’s lawyer, Solicitor General Theodore Olson.
The government routinely asserts control over foreign territory such as military bases, Olson said.
“The United States must have and does exercise relatively complete control. Every argument that’s being made here today could be made by the 2 million persons that were in custody at the end of World War II and judges would have to decide the circumstances of their detention, whether it’s been adequate military process, what control existed over the territory in which they were being kept,” he 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 yesterday’s argument camped out overnight, and a line of several hundred people snaked around the building.
“It’s not acceptable to detain people without recourse. I think they should have at least a fair hearing to prove their innocence, if they are innocent,” said Justin Briggs, 25, of Gaithersburg, Md. “It damages the credibility of the US throughout the world.”
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.
