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High Court Hears Detention Cases

Policy on Terror Suspects Challenged

By Charles Lane
Washington Post Staff Writer
Wednesday, April 21, 2004; Page A03

The Bush administration's top lawyer encountered stiff resistance at the Supreme Court yesterday, as he urged the justices to side with President Bush in the first test of the executive branch's power to identify and imprison enemies in the war on terrorism.

Facing the court in oral arguments over the detention of al Qaeda and Taliban suspects held at the U.S. Navy base in Cuba, Solicitor General Theodore B. Olson dramatically reminded the court that "the United States is at war," that more than 10,000 troops are in Afghanistan, and that the country faces an "extraordinary threat."

But several justices asked questions that implied they doubted Olson's assertion that Bush, as commander in chief, may hold the suspects for interrogation at the base in Cuba as long as he deems necessary, without judicial oversight.

"It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want -- whatever they want without a check," Justice Stephen G. Breyer said.

Justices Sandra Day O'Connor and Anthony M. Kennedy, moderate conservatives whose votes often decide close cases, questioned the administration's reading of the 1950 precedent on which it based its case.

Yesterday's hearing focused on two consolidated cases: Rasul v. Bush, No. 03-334, and al Odah v. Rumsfeld, No. 03-343, which were brought by family members of 16 British, Australian and Kuwaiti citizens currently or formerly held in the U.S. prison at Guantanamo Bay. The detainees were not charged with crimes or permitted direct contact with lawyers, and attorneys for their families call the prison a U.S.-created "lawless enclave."

Guantanamo houses about 600 detainees from more than two dozen countries and has turned into a major international issue. Human rights groups and foreign governments have taken the Bush administration to task for refusing to grant detainees legal process or declare them prisoners of war under the Geneva Conventions.

The administration has said that the naval base is still formally a part of Cuba, and thus outside U.S. court jurisdiction. The Geneva Conventions do not apply to members of an irregular force, the administration says -- but it has promised that the detainees' treatment will be consistent with the accord.

In response to diplomatic pressure and military determinations that some detainees are no longer dangerous, the Bush administration has released 146 in the past two years, including the two British citizens involved in this case, though 12 of those released are in custody in their home countries. The administration has named six detainees for trial before a military tribunal.

But although the court's eventual ruling could have broad impact on the U.S. image abroad, the issue before the court is relatively narrow. The question is whether the Guantanamo detainees have a right to ask a federal court to order the president to give them a hearing -- not whether the courts must do so.

Even if the Supreme Court sides with them in this case, the detainees would face a long bout of litigation before winning release or major changes in their confinement.

Acknowledging the strong public interest in the case, the court, which bars live radio and television coverage, permitted the release of an audio recording of the one-hour argument after it concluded.

What the court's worldwide audience heard was an intense discussion, with justices often interrupting one another to get in their questions. Inside the courtroom, the justices could be seen leaning forward, listening intently to the lawyers' answers.

The Bush administration won the case in the lower courts, so it was already something of a setback for the administration that the Supreme Court required it to defend its policies again.

If Olson sought to set the tone by invoking the continuing threat to U.S. troops in Afghanistan, Justice John Paul Stevens seemed equally determined to thwart him.

As soon as Olson mentioned the war, Stevens -- a decorated veteran of the Pacific Theater in World War II -- interjected, asking whether Olson would make the same arguments if the war were over. When Olson conceded that he would, Stevens countered: "So the existence of the war is really irrelevant to the legal issue."

Olson then moved on to his main contention: that the Guantanamo prison is outside the jurisdiction of the federal courts.

The Supreme Court ruled in 1950 that foreign prisoners held outside the United States in connection with a war are not covered by a federal law that entitles prisoners to challenge illegal detention by suing for a writ of habeas corpus, he noted. And, he added, since the 1903 lease that granted the United States "complete jurisdiction and control" at Guantanamo kept "ultimate sovereignty" for Cuba, the prison there is outside the United States.

But several justices questioned Olson's reading of the 1950 precedent, known as Johnson v. Eisentrager. They implied that the case was limited to its different facts: The prisoners then were tried and convicted of war crimes, whereas today's Guantanamo detainees have not been.

O'Connor noted that the court in 1950 had said "they have had a trial under the military tribunal and they have no rights that could be granted at the end of the day, and no mention of the habeas statute."

Later, Kennedy implied that Olson had contradicted his own argument when he said that U.S. citizens held at Guantanamo might have a right to sue for habeas corpus but noncitizens would not.

"If the citizen can say that he is a prisoner held under the authority of the United States in Guantanamo, why couldn't a noncitizen say the same thing?" Kennedy asked.

Olson replied that the court had appeared to recognize "more protection for citizens" in Johnson v. Eisentrager.

But Kennedy also pressed retired federal judge John J. Gibbons, who was arguing for the detainees, to define the limits in his argument, asking whether he would be willing to give court access even to combatants at the time of their capture on the battlefield. Gibbons struggled to answer, ultimately conceding that "habeas corpus . . . has never run to the battlefield."

For most of the rest of the hearing, the court seemed divided along its usual left-right lines. The four more liberal justices -- Breyer, Stevens, David H. Souter and Ruth Bader Ginsburg -- asked questions that suggested strong doubts about the Bush administration's claims, and two of the most conservative justices, Chief Justice William H. Rehnquist and Antonin Scalia, seemed more supportive. Justice Clarence Thomas, as is his custom, remained silent.

A decision in the cases is expected by July.

© 2004 The Washington Post Company

http://www.washingtonpost.com/wp-dyn/articles/A26813-2004Apr20.html