Justices wrangle with lawyers over Guantanamo

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - Wednesday morning’s clash before the United States Supreme Court essentially hinged on one question: Are the procedures for judicial review which Congress provided for Guantanamo detainees good enough?

Last year’s Military Commissions Act, or MCA, set those standards.

What the high court must determine is whether or not those MCA procedures are an adequate alternative to the writ of habeas corpus which allows prisoners to get a court hearing to challenge their detention.

Solicitor General Paul Clement tried to convince the justices the MCA is in fact good enough.

The laws passed by Congress to handle the Guantanamo detainees “represent the best efforts of both political branches to try to balance the interests” of the detainees “in this admittedly unique situation” against “the imperative to successfully prosecuting the global war on terror.”

Better rights than they ever had before?
In a colloquy with Justice Stephen Breyer, Clement later added, “Congress here has spoken; the political branches have spoken... and (the MCA) has given these detainees better rights and access to administrative and judicial review” than enemy prisoners ever had before.

The plaintiffs Wednesday were Lakhdar Boumediene and other detainees.

According to their lawyers, Boumediene and his fellow plaintiffs are Algerians who lived in Bosnia, were arrested by Bosnian police in 2001, and were turned over to U.S. custody. They claim they are not terrorists.

Slide show   Inside Guantanamo A look at the controversial U.S. detention center in Cuba, home to prisoners accused of having terrorist ties. more photos

The lawyer for Boumediene and the other detainees, Seth Waxman, who served as solicitor general in the Clinton administration, said, “This is a particularly easy, straightforward case” because the court already ruled in the 2004 Rasul decision that Guantanamo is under the control of the United States, therefore the prisoners there ought to have habeas rights.

He even said at one point that military prisoners held in Germany might be eligible for a writ of habeas corpus — which if the court agreed, would overturn its 1950 Eisentrager decision.

The detainees must have a right to present evidence of their not being enemy combatants, and the government ought not to be allowed to use secret evidence that it showed only to the judge and not to detainees.

Congress created Combatant Status Review Tribunals (CSRTs), or panels of military officers, to determine whether each person at Guantanamo is in fact a terrorist threat.

The decisions of the CSTRs can be appealed to the federal appeals court for the District of Columbia Circuit in Washington and then to the Supreme Court.

Kennedy's crucial role
Why couldn’t all the scrimmaging be done in the CSRTs, wondered Justice Anthony Kennedy, who seemed to be leaning toward the Bush administration's stance with that question.

Because the CSRTs are flawed, Waxman said, and for detainees who have been held for six years, “the time for experimentation is over. We have tried and true established procedures,” meaning habeas hearings.

In one sense it seemed simple: was the review procedure ordered by the MCA adequate?

But if you were sitting in the courtroom hearing the arguments, unless you were steeped in old English cases such as the Case of Three Spanish Sailors, from 1779, you were soon utterly lost.

Clement spend many minutes of his presentation wrestling rhetorically with Justice David Souter over that arcane and antiquarian bit of English law.

Did the court in London back in 1779 hold what amounted to a habeas corpus hearing for the three Spanish prisoners of war who were challenging their detention?

Or had the court given the Spanish sailors a sort of cursory judgment without a hearing?

English legal history junkies
Both Souter and Clement are 18^th century English legal history junkies of a kind only seen at either Oxford University, where Souter spent two years as a Rhodes Scholar, or at Cambridge University, where Clement got his master’s degree in economics.

For his part, Waxman spent long stretches battling with Justice Antonin Scalia over a 1960 English case called Ex parte Mwenya, which had to do with whether the writ of habeas corpus fully applied to the British Protectorate of Northern Rhodesia.

At one point Souter and Justice Ruth Bader Ginsburg complained that the court had already decided this territorial kind of situation in the 2004 Rasul decision — and had ruled against the Bush administration.

But Scalia wasn’t willing to let the Rasul decision rest soundly.

He pounded away at Waxman, snapping, “Do you have a single case in the 220 years of our country, or for that matter in the five centuries of the English empire, in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England?”

Waxman said the answer was a “resounding yes,” but Scalia disputed every case Waxman offered.

“Mwenya involved an English subject, not an alien” Scalia said, calling the case “totally irrelevant.”

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