Detainees' Case Heads to Supreme Court

Dec. 3, 2007 — -- Wednesday, lawyers for President Bush will once again travel to the highest court in the land to debate the rights of detainees being held in Guantanamo Bay, Cuba.

The question of what to do with detainees captured on and off an unorthodox battlefield has provoked a raging controversy around the world.

At issue in the pending case before the Supreme Court is the allegation from about 50 detainees that the Military Commissions Act (MCA) of 2006 violates their right to challenge their detentions in federal courts.

Military Hearings: Adequate Substitute?

The detainees claim that military hearings, sanctioned by the MCA as a substitute for hearings in federal court, are neither fair nor impartial. They argue that the current system strips them of proper legal representation, a neutral fact-finder and the ability to hear all the evidence against them.

The government counters in legal briefs that when Congress passed the MCA, it struck the necessary balance between the detainees' rights and the need to ensure "that those who have in fact fought with the enemy during a war do not return to battle against the United States."

Government: Enemy Combatants Enjoy Protections

The government argues that foreigners held outside the territory of the United States do not have due process rights guaranteed under the Constitution and stresses that the petitioners "enjoy more procedural protections than any other captured enemy combatants in the history of warfare."

The government says that the MCA affords detainees a "constitutionally adequate" substitution for having their claims heard in federal court.

Detainees Want 'Day in Court'

But lawyers for the detainees contend in court filings that the detainees seek, "nothing more than a day in court to establish their innocence of any wrongdoing that might justify their detention — a hearing the government has fiercely fought to deny them for nearly six years."

Additionally, the lawyers argue "Guantanamo has become an international symbol of the Executive Branch's contempt for the rule of law and a deep stain on the reputation of the United States at home and abroad."

Closing Gitmo

Bush and other senior government officials have long said that they wish to ultimately close the detention center located on a U.S. military base in Cuba, but that before doing so, the administration has to figure out what to do with the more than 340 detainees currently housed at the facility.

In his recent confirmation hearings, Attorney General Michael Mukasey said that there were "substantial" problems with Guantanamo and the fact that the United States is detaining people "apparently without end" has given the nation a "black eye."

Mukasey testified, "I can't simply say, 'We have to close Guantanamo,' because obviously the question then arises what we do with the people who are there. And there is now no easy solution to that."

High Stakes for Bush Administration

According to University of Maryland School of Law professor Michael Greenberger, "If the Bush administration loses this case, it will almost certainly be a death knell for Guantanamo Bay as a detention facility. A ruling adverse to the administration, while only technically giving detainees their day in court, will almost certainly open a Pandora's box of judicial scrutiny."

Some officials directly involved with the process to review the detention of prisoners at Guantanamo say the system is flawed.

Detain Now, Ask Questions Later?

Lt. Col. Stephen Abraham of the U.S. Army Reserve, who was assigned to the Office for the Administrative Review of the Detention of Enemy Combatants, says the prevailing mentality was that it was better to keep the men detained, "then get to the bottom line of whether they were a threat."

Abraham, whose views are cited in detainee briefs, told Congress in the summer that the process was designed by the executive branch to "legitimize the detentions" not to "ascertain the truth."

Israel's 'Vital Stake'

Of the myriad "friend of the court" briefs that have been filed on both sides of the case, one that has garnered special attention comes from several specialists in Israeli military and constitutional law.

In their brief in support of the detainees, the experts argue that Israel, which has "faced mortal threats to its national survival and countless acts of terrorism against its civilian population," has a "vital stake" in assuring that the United States pursues its struggle against terrorism "successfully."

The experts argue that, "in an interdependent world threatened by transnational terrorism and linked by converging rule-of-law norms, all peoples are affected by the process the United States affords to foreign nationals who fall under its control."

The government, in its brief, dismisses the Israeli claims, saying that comparisons with Israeli detentions connected to Israel's sovereign territory are "hardly appropriate" for comparison with the evaluation of the detention of enemy combatants on "another continent."

A ruling in the case is expected in early summer, just months before the next presidential election.