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Published: Tuesday, 11/11/2003

Justices will review Guantanamo appeals

BY MICHAEL McGOUGH
BLADE WASHINGTON BUREAU

Involving itself for the first time in a legal controversy generated by the post-Sept. 11 war on terrorism, the U.S. Supreme Court yesterday agreed to decide whether foreign nationals detained at a U.S. naval base in Cuba may challenge the legality of their detention in a federal court.

By intervening in a legal challenge brought by relatives of detainees from Britain, Australia, and Kuwait, the high court disregarded the advice of the Bush administration, which in a sharply worded brief had warned against “judicial interference with military affairs committed to the political branches.”

About 600 prisoners captured in the war against al-Qaeda in Afghanistan are thought to be held at Guantanamo, though the U.S. government in its filing said that 60 prisoners have been released or repatriated in the past year and a half.

The plight of the Guantanamo detainees has drawn criticism from civil libertarians.

Last month the International Committee of the Red Cross, concerned about reports that some detainees had attempted suicide, denounced their continued detention.

In agreeing to hear two appeals from relatives of detainees, the Supreme Court indicated that, at this stage anyway, it wasn t interested in deciding whether the detention is illegal.

Rather, the Supreme Court asked lawyers to address the narrower question of “whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals” in Guantanamo.

In answering that question, however, the court will have to confront other issues:

w Is the Guantanamo Bay Naval Base, operated by the United States under a lease that predates Fidel Castro s regime, a “de facto” U.S. territory, a status that might give the detainees the right to file suit in a U.S. court?

w Does the fact that the detainees have not been convicted of a crime make any difference?

w Does the unfinished nature of the war on terror entitle President Bush to special deference from the courts?

In its brief, the Justice Department insisted that, despite the U.S. lease on Guantanamo Bay, Cuba retains “ultimate sovereignty.”

Therefore, the government suggested, the status of those detained is governed by a 1950 Supreme Court decision holding that German soldiers convicted of engaging in military activity against the United States in China after the end of World War II could not file a writ of habeas corpus in U.S. courts.

In the 1950 case, Johnson vs. Eisentrager, the court said “in extending constitutional protections beyond the citizenry, the [Supreme] Court has been at pains to point out that it was the alien s presence within its territorial jurisdiction that gave the judiciary power to act.”

Lawyers for the Kuwaiti detainees argued those at Guantanamo cannot be compared to the German prisoners in the 1950 case.

Moreover, they have argued, a federal appeals decision in the government s favor was so broadly worded that it would “authorize executive officials to seize a Canadian off the streets of Toronto in time of peace ...”

Human rights groups welcomed the Supreme Court s decision to hear the appeals.

“The treatment of the Guantanamo detainees is a human rights scandal which violates international law and damages U.S. claims to uphold the rule of law,” Amnesty International said in a statement.



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