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| At the naval base: Military guards move a Guantánamo detainee. The high court is examining the legality of America's treatment
of such detainees. Brennan Linsley/AP/file |
Key Guantánamo cases hit Supreme Court
The high court hears two cases Wednesday that challenge the basic US terms of detention at the prison camp.
By Warren Richey | Staff writer of The Christian Science Monitorfrom the December 5, 2007 edition
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WASHINGTON - Habeas corpus – the right to test the legality of one's detention before a neutral judge – is widely recognized as a cornerstone of government rule by law and the most basic guarantee of individual freedom. The Founding Fathers deemed it so fundamental that they wrote it into the body of the Constitution itself.
But does that core freedom extend overseas to America's enemies in the war on terror?
On Wednesday, the US Supreme Court takes up two potential landmark cases examining the legality of America's treatment of terror suspects at the Guantánamo Bay, Cuba, prison camp.
The stakes are enormously high, not just for the detainees but for the Bush administration as well. If constitutional and other legal rights extend to the 305 enemy combatants currently being detained at the naval base, administration officials, military officers, interrogators, and others could be forced by federal judges to appear in open court to reveal every detail of how detainees were captured and treated – including harsh interrogation methods and alleged torture. If the administration refuses to comply, the remedy under habeas corpus is immediate release from custody.
"That is precisely why the administration is fighting so hard," says Bradford Berenson, a former associate counsel in the Bush White House. "They feel there needs to be a balance between the security imperatives and the [legal] process."
Mr. Berenson adds, "Any process that is likely to force them to release suspected terrorists back onto the global battlefield is regarded as a very bad thing for the country."
Lawyers representing four groups of Guantánamo detainees are urging the high court to declare that their clients have a constitutionally guaranteed right to have the legality of their imprisonment examined by a federal judge.
"The founders of our nation created a Constitution dedicated to the protection of liberty, not one that turns a blind eye to indefinite detention without a meaningful opportunity to be heard," writes Seth Waxman, solicitor general during the Clinton administration, in his brief on behalf of the detainees.
US Solicitor General Paul Clement counters that the administration has worked with Congress to enact an unprecedented array of legal safeguards at Guantánamo. "The detainees now enjoy greater procedural protections and statutory rights to challenge their wartime detentions than any other captured enemy combatants in the history of war," Mr. Clement writes in his brief.
Many safeguards have been enacted reluctantly by the Pentagon to head off or satisfy rulings by the Supreme Court.
The Bush administration's original idea in locating the terror prison camp at Guantánamo was by keeping it outside US borders, its operations would be beyond the reach of US constitutional rights.
When the camp opened in January 2002, that meant foreign terror suspects captured around the world could be detained, interrogated, and prosecuted at Guantánamo without the robust legal safeguards and judicial oversight that would have applied had the detainees been held within the United States.
But then in 2004, the Supreme Court rejected the administration's position that Guantánamo detainees lacked any rights to habeas corpus protections.
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