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US Supreme Court considers appeal from foreign terrorist suspects

Wednesday, December 5, 2007

The United States Supreme Court
Image: Chuck Ree.

The United States Supreme Court has heard a plea that terrorism suspects being held at the U.S. Naval base at Guantánamo Bay, Cuba, should be given the opportunity to challenge their detention in American courts.

Demonstrators outside the court chanted and waved signs calling on the nine high court justices to grant the detainees habeus corpus, the age-old legal principle that allows prisoners to challenge their detention before a neutral judge. Inside the court, attorney and former US Solicitory General Seth Waxman argued on behalf of a group of 37 detainees, part of the 305 prisoners now being held at Guantánamo.

"All have been confined at Guantánamo for almost six years," he said. "Yet, not one has ever had meaningful notice of the factual grounds of detention, or a fair opportunity to dispute those grounds before a neutral decision-maker."

But Waxman appeared to have little success in convincing some of the high court's more conservative justices that the Guantanamo detainees have a constitutional right to challenge their detentions in court. Among the skeptical was Supreme Court Justice Antonin Scalia.

"You are appealing to a common law right that somehow found its way into our Constitution without, as far as I can discern, a single case in which the writ [right] was ever issued to a non-citizen," he said.

Some of the other justices appeared more sympathetic, including Justice Stephen Breyer.

"Now it has been six years, and habeas is supposed to be speedy, and yet people have serious arguments anyway that they are being held for six years without even having those arguments heard," he said.

Since January 2002, more than 750 people have been held. Many of the 305 prisoners at Guantánamo have complained of abuse and almost all have been confined for years without charges. Around 470 other prisoners have been released over the years, and the U.S. said it intends to try 60 to 80 of those currently in detention.

Since 2002, just three prisoners have been formally charged, and only one has been convicted, as part of a plea bargain. David Hicks, an Australian citizen, who admitted to training with al-Qaeda, was repatriated to Australia to serve a nine-month prison sentence.

The Supreme Court ruled against the Bush administration in two previous cases concerning the legal rights of the Guantánamo detainees. Congress got involved in the issue in 2006 and passed a law that was designed to keep detainee appeals out of the civilian court system and refer them instead to military commissions.

Aerial view of Guantánamo Bay, Cuba.

But civil and legal rights groups say the alternative procedures set up by Congress and the Bush administration deprive the detainees of basic rights.

"At issue here that the Supreme Court decided was; 'Do we have a king in this country who is not bound by the rule of law and not bound by the Constitution? Or do we have a president that is subject to the Constitution?," said Vincent Warren, executive director of the Center for Constitutional Rights.

Conservative legal scholars argue against U.S. constitutional protections for foreign terrorist suspects.

"If the courts are going to be in charge of the conduct of warfare, we are going to be a much less safe country," said Andrew C. McCarthy, who is with the Foundation for Defense of Democracies.

A decision by the Supreme Court in the Guantánamo case is expected before the end of June.


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