Justices To Hear Guantanamo Cases

Team Infidel

Forum Spin Doctor
Philadelphia Inquirer
December 2, 2007 Detainees seek the right to challenge their imprisonment. The outcome could affect the U.S. antiterrorism effort.
By Michael Doyle, McClatchy Newspapers
WASHINGTON - Mustafa Ait Idir is no longer the man he was when Bosnian police set him on the rough road that has now reached to the U.S. Supreme Court.
The Algerian native, 37, a former computer expert and karate champion, says his bones were broken, his family fractured, his life these last six years stolen away.
The Bush administration characterizes Idir as an enemy combatant who planned to attack the U.S. Embassy in Sarajevo. Idir says he is an innocent man caught in the legal limbo of the Guantanamo Bay prison camp in Cuba.
"If I had a relationship with terrorism, I would tell you I am really a terrorist and I would not be concerned," Idir told military officers in 2004. "When I tell you that I don't have a relationship, it is not because I am scared of you, it is because it is the truth."
Idir lost that argument. The evidence against him was classified, and he couldn't rebut it. But on Wednesday, he and other Guantanamo detainees will get a new chance before the Supreme Court.
The accused men want the right to challenge their imprisonment through a writ of habeas corpus. They could end up changing how the United States manages its open-ended antiterrorism effort.
"These are incredibly significant cases," said David Cynamon, a Washington-based attorney for some of the detainees. "They squarely present a constitutional question of the highest importance."
Multiple Guantanamo cases are being combined for an hour-long oral argument Wednesday morning. The justices must first decide whether the approximately 340 foreign-born prisoners are protected by constitutional habeas corpus guarantees.
Habeas corpus - "produce the body" in Latin - is a 13th-century tenet of law enshrined in the U.S. Constitution. It enables prisoners to demand in federal court the legal justification and factual basis for their detention.
If the justices rule that Guantanamo prisoners have habeas corpus rights, they then must decide whether Congress provided an acceptable alternative to federal courts by using special tribunals.
Together, the questions make the consolidated cases, Boumediene v. Bush and Al Odah v. United States, highlights of the Supreme Court's term. They will be the first cases of their kind to be decided by the newest justices, John G. Roberts Jr. and Samuel A. Alito Jr. And they are electrifying the legal community.
Former officers, including the retired Marine Corps brigadier general who was the technical adviser for the courtroom drama A Few Good Men, have fired off competing amicus briefs. Historians have summoned dusty evidence, such as a 1775 case involving English prisoners held in Calcutta. Two dozen retired U.S. diplomats have warned that "repressive governments" will take cues from the outcome.
Jonathan Hafetz, counsel for the New York-based Brennan Center for Justice, said that at stake is "whether the United States can establish lawless enclaves, prisons beyond the law."
The Bush administration and its allies see the cases differently, emphasizing wartime exigencies.
"Capturing and detaining enemy combatants in times of war is essential to effective military operations," retired Rear Adm. William Schachte declared in a brief. "Granting those detainees full-fledged habeas rights could compromise American military effectiveness."
The plaintiffs reached Guantanamo in different ways. Six, including Idir and fellow Algerian Lakhdar Boumediene, the former Red Crescent aid worker whose name leads one case, had emigrated to Bosnia. There, U.S. officials allege, they associated with al-Qaeda operatives. Others were seized in Afghanistan or Pakistan. For years, all have navigated the federal judiciary as Congress has periodically rewritten the rules of the game.
The administration argues that the men have no habeas corpus rights because they are foreigners and not imprisoned on U.S. soil.
Wednesday's arguments will partly center on a constitutional clause that lets the writ of habeas corpus be suspended only "when in Cases of Rebellion or Invasion the public Safety may require it."
In 2004, the Supreme Court ruled that the detainees had a right to habeas corpus under a statute passed by Congress. Congress responded with a 2005 law stripping federal courts of their jurisdiction, blocking further habeas petitions. The Supreme Court then ruled that the 2005 law didn't apply retroactively to Guantanamo petitions that had already been filed.
Then, in the Military Commissions Act of 2006, lawmakers blocked all Guantanamo habeas corpus cases - past, present and future.
Justice Anthony M. Kennedy is a likely swing vote in the case. Cynamon predicts a 5-4 decision, no matter what the outcome.
Idir and the other plaintiffs will not be at the hearing, as most remain locked in their cells for up to 22 hours a day.
 
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