Taking up one of the most significant wartime cases in a half century, the Supreme Court struggled Wednesday with whether hundreds of detainees at Guantanamo Bay, Cuba, have a right to challenge their detentions in open court with a lawyer by their side.
In an intense, hourlong hearing, replete with references to wartime legal issues dating back centuries, attorneys sparred with the justices over the rights of the roughly 300 foreign nationals now held at Guantanamo who were captured both on and off the battlefield in an unconventional war.
Lawyers for the detainees argue that the men have a right to challenge their detention in federal courts. They claim that the Military Commissions Act (MCA), which was passed by Congress in 2006 to create a special legal system for detainees, denies them the right to fair and impartial hearings, proper legal representation and the ability to hear all the evidence against them.
The stakes are enormous. If the justices rule against the government and throw open the courthouse doors, the detainees could then argue that they should be able to be present in court with access to most of the evidence against them and have the ability to call witnesses.
They also could seek to challenge the government's methods for getting that evidence. The government has insisted that such information must remain confidential so it can continue gathering valuable information in the war on terror.
In court Wednesday, Seth Waxman, a lawyer for the detainees and former solicitor general during the Clinton administration, said that the current system is "structurally flawed" and has resulted in countless innocent people being detained. He argued that because the detention center is in Cuban territory under U.S. jurisdiction, the men should have rights guaranteed by the constitution.
"The United States exercises complete jurisdiction and control over this base," Waxman said. "No other law applies."
But Solicitor General Paul Clement, arguing for the Bush administration, said that the military hearings sanctioned by the MCA are an adequate substitute for having the detainees' claims heard in federal court.
"It really does represent the best efforts," Clement said, to "prosecute the global war on terror."
The justices appeared to be divided in their opinions on the case. Conservatives said the detainees were seeking unprecedented access to U.S. courts, and suggested that the issue had been appropriately resolved by Congress when it created the system of military hearings. Liberals focused on how long the detainees had been at Guantanamo without being fully informed of the evidence against them.
Conservative Justice Antonin Scalia said the government had never opened courthouse doors to foreign nationals picked up on the battlefield and held outside the United States.
"Just give me one case," he pressed Waxman. "There's not a single one in all this lengthy history."
But liberal Justice Stephen Breyer focused on whether the men at Guantanamo belong there. "People have serious arguments, anyway, that they are being held six years without even having those arguments heard."
The government has argued that petitioners "enjoy more procedural protections than any other captured enemy combatants in the history of warfare."