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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.

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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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Shortly after that ruling, the Pentagon created a system of military tribunals designed to review each detainee's status as an enemy combatant. More than 400 detainees have been transferred to custody in other countries or released from Guantánamo after tribunal hearings.

Government lawyers urged federal judges in Washington to dismiss remaining habeas corpus petitions, arguing that adequate administrative alternatives now exist at Guantánamo.

When the flood of litigation continued, the Republican-controlled Congress responded by passing a law stripping the federal courts of jurisdiction to hear the detainees' habeas petitions.

A federal appeals court upheld the court-stripping law, ruling that because the detainees at Guantánamo are foreigners held outside the US, they enjoy no legal rights beyond participating in the special process set up at Guantánamo by the Pentagon and Congress.

Lawyers for the detainees say that military tribunals do not provide for the kind of searching independent scrutiny that a federal judge is empowered to provide in response to a habeas petition.

Under the military tribunal system, there is no right to legal counsel, information obtained through coercive interrogation techniques and any torture can be admitted as evidence, and the tribunal can rely on classified information never shown to the detainee.

"From the beginning, this administration treated the law as an impediment to be avoided. Guantánamo is the place where they thought they could do that," says Thomas Wilner, who represents one group of detainees in the high-court case.

"The reason the government has continued to defend this so strongly, despite the international outrage about it and despite the fact that it is so contrary to our fundamental values, is because of a fear of exposure of the mistakes they made, and embarrassment as a result of it, and maybe legal action," Mr. Wilner says.

"I guess one solution would be to execute all the people at Guantánamo, and then they could never talk," he quips. But he quickly adds, "We are a country that believes in shining the light of the sun on things."

Berenson says the Bush administration is attempting to fight and win a war. Both the president and Congress have agreed on a set of rules to govern terrorism detentions, and the courts should respect their efforts, he says.

"The people on the administration side of this debate feel it is very important for the courts to play a relatively modest role and not to inhibit experimentation in policymaking by the politically accountable branches," Berenson says.

Wilner sees the case as a watershed event similar to the high court's infamous Korematsu decision, upholding the internment of Japanese-Americans during World War II.

"The justices will be judged by the rest of the world and by history by how they vote in this case," he says.

Decisions in the two cases, Boumediene v. Bush and Al Odah v. US, are expected by late June.