War and Liberties
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MARGARET WARNER: After the war in Afghanistan, U.S. forces transferred some 650 captured foreign fighters to a U.S. Naval base at Guantanamo Bay in Cuba. For two years, these enemy combatants have been held and interrogated without formal charges or access to American courts.
Today’s cases involve more than a dozen British, Australian and Kuwaiti detainees who have asked for the right to challenge their detentions in U.S. civilian court. Two lower federal courts have said “no.” Today was the first time the Supreme Court has heard a challenge to the powers asserted by the Bush administration in the wake of 9/11. High interest prompted the court to release audio tapes shortly after the hearing. We go into the courtroom now with Marcia Coyle of the National Law Journal. Jan Crawford Greenberg is on maternity leave.
Welcome back, Marcia.
MARCIA COYLE: Thank you.
MARGARET WARNER: We should say at the outset that the issue before the court today was actually a rather narrow one.
MARCIA COYLE: Yes, it is. The court has agreed to decide whether federal courts have the power to hear claims by these detainees that they’re being held illegally by the president. So basically it’s a question of whether federal courthouse doors are open to these detainees.
MARGARET WARNER: Now the lawyer for the detainees, John Gibbons, went first. On what basis was he asserting that they have this right? Was this some constitutional right he said they had?
MARCIA COYLE: No. He actually claimed that the federal habeas corpus statute does give federal courts this authority. That federal law basically permits federal courts to review the legality of detentions by the executive branch. And he argues that the statute’s language speaks of prisoners, not citizens, not non-citizens, not aliens, enemy aliens, or friendly aliens, just prisoners, and that’s who his clients are.
MARGARET WARNER: Now there was a little exchange with Justice Kennedy which Gibbons acknowledged that he wouldn’t assert that this right to habeas corpus started on the battlefield.
MARCIA COYLE: No. I think Justice Kennedy was trying to probe how far the detainees’ position goes. When Judge Gibbons said that habeas corpus applies to prisoners anywhere, he made a point of clarifying for Justice Kennedy that habeas corpus does not extend to the battlefield and never has.
MARGARET WARNER: So, of course, that raises the issue of, okay, what is Guantanamo Bay?
MARCIA COYLE: Exactly.
MARGARET WARNER: Is it essentially a battlefield moved a little closer to the states but still overseas, or is it sovereign U.S. territory?
MARCIA COYLE: Right. This is the key issue in this case — and Judge Gibbons says that Guantanamo Bay is U.S. territory and so habeas corpus should extend to the detainees, and he looks to the lease that the United States has with Cuba to make his point.
MARGARET WARNER: Now Justices Ginsburg and Rehnquist had quite an exchange with Mr. Gibbons on that point, let’s listen.
JOHN GIBBONS: The court of appeals did rely on some mystical ultimate sovereignty of Cuba over, as we Navy types call it, Gitmo — treating the navy base there as a no law zone. Now Guantanamo Navy Base, as I can attest from my year of personal experience, is under complete United States control and has been for a century.
RUTH BADER GINSBURG: We don’t need your personal experience. That’s what it says in the treaty. It says complete jurisdiction.
JOHN GIBBONS: That’s exactly what it says in the lease, yes.
REHNQUIST: It also says Cuba retains sovereignty.
JOHN GIBBONS: It does not say that. It says that if the United States decides to surrender the perpetual lease, Cuba has ultimate sovereignty, whatever that means. For example, if one of the detainees here assaulted another detainee in Guantanamo, there is no question they would be prosecuted under American law because no other law applies there. Cuban law doesn’t apply there. Cuban law has never had any application inside that base. A stamp with Fidel Castro’s picture on it wouldn’t get a letter off the base.
RUTH BADER GINSBURG: Is it like a federal enclave within a state?
JOHN GIBBONS: Well, Guantanamo is, to some extent, unique. We have exclusive jurisdiction and control over civil law in Guantanamo, and have had for a century. So it’s so totally artificial to say that because of this provision in the lease, the executive branch can create a no law zone where it is not accountable to any judiciary anywhere. Now, in some other places where the United States has a base, there may be other civil authority that can demand an accounting. What the executive branch is saying here is “we don’t have to account to anyone anywhere.”
MARGARET WARNER: Alright, now that was pretty much right at the end of his presentation and then it was Solicitor General Ted Olson’s turn. What was his basic counter argument?
MARCIA COYLE: Well, in terms of sovereignty he’s claiming that this is not U.S. territory; that Cuba is sovereign and so habeas corpus cannot extend to the detainees. But he is saying at the heart of his case is a 1950 Supreme Court case called “Johnson vs. Eisentrager.” And this case involved — this was a post-War World II case involving Germans who were tried by a U.S. military tribunal in China for violating the laws of war by assisting the Japanese after Germany had surrendered.
And the Supreme Court in that case had held that enemy aliens have no access to federal courts and really have no constitutional rights to enforce if they are in federal court. Solicitor General Olson basically says our case is Eisentrager. These are enemy aliens, they’re outside the territory of the United States; they have no access to our courts.
MARGARET WARNER: Which, of course, Gibbons had disagreed with earlier.
MARCIA COYLE: Yes, he did. He said that his clients are not the Eisentrager convicted enemy aliens. One, they claim they’re innocent. Two, they have never been tried by any court.
MARGARET WARNER: And of course, Justice Breyer disagreed that the precedent was obvious. And he had another concern, didn’t he? Let’s listen to this exchange between Breyer and Olson with a brief interjection from Justice Scalia.
STEPHEN BREYER: It’s obvious that there is language in Eisentrager that supports you and also language that is against you. If we go with you, it has a virtue of clarity, there is a clear rule. Not a citizen, outside the United States, you don’t get the foot in the door. But against you is that same fact. It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check. That’s problem one. Problem two is that we have several hundred years of British history where the cases interpreting habeas corpus said to the contrary, anyway. So if it’s that choice, why not say “sure, you get your foot in the door, prisoners in Guantanamo, and we’ll use the substantive rights to work out something that’s protective but practical.”
TED OLSON: Well, Justice Breyer, there are several answers to that. You started with the proposition that there is no check and the executive is asserting no check. This is the interpretation of the scope of a habeas statute. Congress has had 54 years with full awareness of the decision to change it. Indeed, as we point out in our brief, eight months after the Eisentrager decision, a bill was introduced that would have changed that statute — H.R. 2812 which would specifically changed the statute to deal with the Eisentrager situation. So there is a check –
RUTH BADER GINSBURG: It could have been just clarifying, General Olson, as you well know, the fact that a bill was introduced and not passed carries very little weight on what law that exists.
ANTONIN SCALIA: Well, you are not using it to, to say what law was. You’re using it to show that there was available and is available a perfectly good check upon the executive branch. If the people think that this is unfair, if Congress thinks it’s unfair, with a stroke of the pen they can change the habeas statute.
TED OLSON: That’s precisely correct. Congress has also dealt with the habeas statute in a variety of other ways and has seen fit in no way to change the decision required by this court with respect to the statute.
STEPHEN BREYER: I’m still honestly most worried about fact that there would be a large category of unchecked and uncheckable actions dealing with the detention of individuals that are being held in a place where America has power to do everything.
MARGARET WARNER: So at the end there was Justice Breyer suggesting that even the government might — it might be a good idea to let this get into federal court and let it get decided on the merits rather than the constitutional argument which is so arcane?
MARCIA COYLE: He did seem to be suggesting that. Justice Breyer has a wonderful way of summing up both sides of an argument, and then leaving you hanging as to where exactly he would come out. But yes, and I don’t think the government wants that at all because they are concerned about micromanagement of the war on terrorism by the federal judiciary, and feel that the political branches, the executive and Congress, have always made decisions in terms of war and the federal judiciary for very good reason, should just stay out.
MARGARET WARNER: And bottom line, how much of this, at least from the government’s side, their view of the rightness of this, does it rest on the fact that these detainees are not U.S. citizens?
It was very obvious that when they discovered they had one U.S. citizen at Guantanamo, this Mr. Hanby, they got him out of there.
MARCIA COYLE: I think the government’s argument rests on that very strongly. During the argument today, the question of American citizens did come up. And as you know, next week, we are going to be hearing arguments in two cases involving American citizens designated enemy combatants.
Solicitor General Olson said that the protections of habeas corpus do extend to citizens. Our citizens have a special relationship with the government and so there is … there probably would be habeas corpus jurisdiction for American citizens.
MARGARET WARNER: You’re a long time court watcher. Based on the questioning today, are you willing to hazard a prediction?
MARCIA COYLE: I almost never hazard on the basis of oral arguments but I can say that there seem to be four justices: Souter, Ginsburg, Stephens … is that three or four?
MARGARET WARNER: I guess Breyer.
MARCIA COYLE: Yes Breyer, exactly, who have concerns about what the government is doing. Just as Scalia and Chief Justice Rehnquist are leaning the other way. It may come down again as it often does, to O’Connor and Kennedy.
MARGARET WARNER: Marcia, thanks so much.
MARCIA COYLE: Thank you.