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.
RSS