Justices, Attorneys Spar Over Guantanamo Case

Dec. 5, 2007 — -- 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."

But the detainees point out that they don't have lawyers in the military hearings and instead are assigned "personal representatives" by the government. That appeared to trouble both Justices Stevens and Souter.

"Is that personal representative also under an obligation to report back to the military anything that might be unfavorable to the person he is supposedly representing?" Souter asked.

In the months after the Sept. 11 attacks, the administration quickly decided to send detainees to Guantanamo, believing that if the detainees were held off of U.S. soil they would not get access to U.S. courts.

Congress mandated that detainees receive hearings called Combatant Status Review Tribunals to determine whether they should be released or named as enemy combatants. Of the some 800 people sent to Guantanamo, roughly 500 have been released.

Human rights groups around the world have criticized Guantanamo -- and Attorney General Michael Mukasey said in his confirmation hearings that the detention center has given the United States a "black eye." But military lawyers say they are proud of the current system and believe it provides a fair system for review.

Brigadier Gen. Cameron A. Crawford, the deputy commander of Joint Task Force Guantanamo, told ABC News, "I believe that 40, 50 years from now when our children and grandchildren are studying Guantanamo, I believe that history will have judged that we did the right thing at the right time, in face of overwhelming criticism both domestically and most certainly on an international basis."

Military lawyers say that the system at Guantanamo is necessary because the federal court system in America is simply not well suited to handle the legal issues that arise in a war with an enemy like al Qaeda. The government also has created a system of military commissions to try suspected terrorists at Guantanamo.

Capt. Pat McCarthy, the U.S. government's lead counsel in Guantanamo, describes scenarios of capture that have complicated the government's attempt to gather evidence.

"We had to grab as much stuff as we could grab in the house and get out the door with it before the house was inundated with cohorts of the individual that we are taking custody over," he said.

Any chance to gather evidence was rushed, McCarthy said. "So what you have is large green trash bags full of computers, full of weapons, full of letters, you have all of that sort of thing."

He said that such evidence would never be accepted in a federal court. "I can assure you that if you attempt to take that sort of evidence into federal district court you will not be able to convict, period."

But others disagree.

Michael Greenberger, law professor at the University of Maryland School of Law, said the U.S. courts would be able to handle the detainees if the administration lost the case.

"The detainees will have to be brought back to the United States and held either as enemy combatants or prisoners of war here," Greenberger said. "That is not an unusual situation. During World War II both enemy combatants and prisoners of war were held in the United States."

Greenberger said he believes that a loss for the government would cause Guantanamo to eventually close. If detainees got into federal courts, that would undercut the administration's main reason for sending them there in the first place -- it believed they would not have access to courts because they weren't on U.S. soil.

But that would raise a new set of difficult questions. What would happen with the men being held like Khalid Sheik Mohammed, considered to be a mastermind of Sept. 11? Would courts release hundreds of others, some of whom could join the ongoing war?

As Capt. McCarthy said, "If not Guantanamo in Guantanamo, then Guantanamo where?"

Of the myriad "friend of the court" briefs that have been filed in the case, one that has garnered 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 national who fall under its control."

The case should be decided by early summer, months before the next presidential election.