Key Guantánamo cases hit Supreme Court

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.

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.