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Prisoners held at Guantanamo Bay living in a legal limbo

On Nov. 10, the US Supreme Court accepted a consolidated appeal from attorneys for 16 prisoners held at the US naval base at Guantanamo Bay, Cuba. The high court will decide whether the Guantanamo prisoners have a constitutional right to challenge their detention in US federal courts.

The consolidated appeal arises from two separate lawsuits: One filed on behalf of 12 Kuwaitis and the other on behalf of two Britons and two Australians. The lawsuits request a ruling on whether the detentions are legal.

The prisoners were captured by US forces in Afghanistan and Pakistan. They are suspected of being members of al-Qaeda and/or Taliban fighters, but have not been charged with any crime since their incarceration more than 18 months ago.

They, with the other 600-plus prisoners at Guantanamo, have been held in legal limbo. The current facility, Camp Delta, in which the British prisoners are housed is constructed from international shipping containers. Each container houses five prisoners in separate 2m by 2.4m cells. Three sides of the containers are replaced by steel mesh. Eight containers make up one cellblock. The containers are not air-conditioned.

The high court accepted the appeal after two lower federal courts ruled US courts have no jurisdiction over foreign nationals captured abroad in connection with ongoing hostilities and imprisoned by the US government outside the sovereign territory of the US.

President George W. Bush's administration took the same arrogant attitude it has leveled at Congress and the American people to the Supreme Court. In his brief before the high court, Solicitor General Theodore Olson, representing the administration, declared the lower federal courts had ruled correctly and, therefore, the Supreme Court should deny the appeal. The high court has no reason to hear oral arguments in the case, according to Olson's brief.

Thus, the administration threw down the gauntlet. And in doing so, the administration set the stage for an historic clash between the federal judiciary and the executive branch.

The US Supreme Court is not a body that takes kindly to being told which appeals it can and cannot accept.

The high court accepted the Guantanamo prisoners' appeal -- but only on one narrow question: Do US courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad and incarcerated at the Guantanamo Bay Naval Base?

By accepting the appeal, the Supreme Court unmistakably told the administration if the US courts have no jurisdiction in this case, it will be the high court that makes that decision, not the president or his administration.

The lower federal courts, in denying jurisdiction in this case, relied heavily on a 1950 Supreme Court ruling in Johnson v. Eisentrager. In Eisentrager, the high court denied judicial review for 21 German nationals who were captured in China and after the war shipped to Germany to serve their prison sentences. They had been tried and convicted of violating laws of war by a US military commission in China. The German nationals argued that their confinement violated the Constitution.

The Supreme Court found no right existed to review their case, "for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States."

The case which faces the high court now differs from Eisentrager in two important aspects -- lack of due process for the prisoners and whether Guantanamo Bay Naval Base is, indeed, US territory.

The foreign nationals being held at Guantanamo have not been charged or tried. There has been no legal closure for the prisoners. Our legal and historic traditions rebel against indefinite imprisonment without benefit of trial. Our traditions do not tolerate a legal vacuum.

The lower courts based their decisions on the fact that the Eisentrager prisoners were being held in a US military prison in Germany, outside the sovereign territory of the US. The US naval base at Guantanamo Bay doesn't present such a clear picture. The briefs filed on behalf of the prisoners claim that Guantanamo Bay Naval Base is US sovereign territory in all but name. The land is leased from Cuba, but gives the US military sole authority over what occurs and who is allowed on the base.

If no civilian court can hear their claims, the prisoners will be forced to wait until the president activates military tribunals to hear these cases, or wait until hostilities end -- which may be decades from now.
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