JIM LEHRER: Now, the Guantanamo detainees' day in the U.S. Supreme Court. Ray Suarez begins our coverage.
RAY SUAREZ: Today marked the fourth time in three years the justices have looked at a case related to enemy combatants, suspected members of al-Qaida and the Taliban, captured and detained at Guantanamo Bay, Cuba.
What the detainees want is the chance to challenge their detentions in U.S. federal courts. NewsHour regular Marcia Coyle of the National Law Journal was at the court for today's argument, and she joins us now.
And, Marcia, the court having heard so many preceding cases on the rights of the federal government and the rights of detainees, what was at issue today that was different?
MARCIA COYLE, National Law Journal: This case asks whether the detainees in Guantanamo Bay have a constitutional right to petition for habeas corpus in the federal courts. It involves one of our most fundamental constitutional guarantees: the great writ of habeas corpus, an ancient right that gives prisoners access to the courts or to some tribunal to challenge their detention.
RAY SUAREZ: So Seth Waxman represented the six Algerian nationals detained in Guantanamo. What was the crux of his argument?
MARCIA COYLE: Mr. Waxman, if you recall, Ray, was solicitor general of the United States during the Clinton administration. His clients are the Algerians, but he today before the court was representing 37 detainees who claim that they are innocent and who have been held at Guantanamo Bay without charge for nearly six years.
He's arguing that the history of the great writ and its application shows that it does extend to these detainees in Guantanamo Bay and that Congress violated the suspension clause in the Constitution, which protects the application of the great writ by enacting the Military Commission Act and the Detainee Treatment Act, which also stripped the federal courts of jurisdiction over petitions by detainees in Guantanamo Bay and anywhere else.
RAY SUAREZ: Well, lately, when there are big cases, the Supreme Court has started to make audio more readily available. What are we going to hear in this next excerpt?
MARCIA COYLE: By arguing that the history of the great writ in 1789, and even earlier, shows or proves or demonstrates that these detainees have a constitutional right to habeas corpus, it drew Mr. Waxman and the justices into cases that applied the great writ in 1789 and sometimes as early as the 1600s in British law, because the writ has its roots in British common law.
And we're going to hear how Justice Scalia was very skeptical of the historical argument that Mr. Waxman was making.
RAY SUAREZ: Let's take a listen.
JUSTICE ANTHONY SCALIA, U.S. Supreme Court: 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?
SETH WAXMAN, Attorney: The answer to that is a resounding yes.
JUSTICE ANTHONY SCALIA: What is...
SETH WAXMAN: They are the cases that were discussed and cited by the majority opinion in Rasul. And we have added other ones to them.
JUSTICE ANTHONY SCALIA: In 220 years of our history or five centuries of the British, do you have a single case in which it was not a citizen of England or a citizen of the United States in which a common law writ of habeas corpus issued to a piece of land that was not within the sovereign jurisdiction?
You are appealing to a common law right that somehow found its way into our Constitution without, as far as I can discern, a single case in which the writ ever issued to a non-citizen.
RAY SUAREZ: So we hear Justice Scalia really asking two things. Does this law apply to foreigners? And does it apply on foreign soil? So I guess that brings into question what Guantanamo Bay is.
MARCIA COYLE: Exactly. And the reference to Rasul was a decision in 2004 by the Supreme Court which looked at whether the detainees in Guantanamo Bay had a right to file habeas petitions in federal court under a statute.
The court left open the question of whether there's a constitutional right. The court said there was a statutory right to federal habeas, because Guantanamo Bay, for all practical purposes, is under the exclusive jurisdiction of the United States, according to the terms of a lease that the United States has with Cuba.
And Mr. Waxman, time and again, would press the argument that Guantanamo Bay is under the control of the United States, and so the constitutional right of habeas corpus applies to these detainees.
RAY SUAREZ: Arguing for the United States was Solicitor General Paul Clement. How did he respond?
MARCIA COYLE: Mr. Clement argues that the constitutional right of habeas corpus does not apply to detainees in Guantanamo Bay. He spent most of his argument, however, dealing with questions that related to the second issue in the case.
I mentioned that the suspension clause protects the application of the writ of habeas corpus. It says that that writ shall not be suspended, except in cases of invasion or rebellion when the public safety requires it. Those circumstances aren't present here.
The court has said over the years, however, that habeas corpus doesn't have to be available in a formal sense always if there is an adequate alternative to it.
Mr. Clement spent most of his argument saying that the procedures set up under the MCA and the DTA, by which detainees have their status determined by a combatant status review tribunal, a CSRT, and they're tried by a military commission, if charged, that is an adequate alternative to habeas corpus. It provides these aliens with more rights than prisoners of war or other aliens have ever been given in our history.
RAY SUAREZ: Let's listen to this exchange between Associate Justice Stephen Breyer and Solicitor General Paul Clement.
PAUL CLEMENT, U.S. Solicitor General: Let me say about the DTA and MCA, it really does represent the best efforts of the political branches, both political branches, to try to balance the interest in providing the detainees in this admittedly unique situation additional process with the imperative to successfully prosecute the global war on terror.
JUSTICE STEPHEN BREYER, U.S. Supreme Court: They get additional process. The question I guess is whether it's an adequate substitute for having withdrawn the writ of habeas corpus.
On that question, suppose that you are from Bosnia, and you are held for six years in Guantanamo. And the charge is that you helped al-Qaida. And you've had your hearing before the CSRT.
And now you go to the D.C. Circuit and here's what you say: The CSRT is all wrong. Their procedures are terrible. But, Judge, for purposes of argument, I concede their procedures are wonderful, and I also conclude it reached a perfectly good result. OK? So you concede it, for argument's sake.
But what you want to say is, Judge, I don't care how good those procedures are. I'm from Bosnia. I've been here six years. The Constitution of the United States does not give anyone the right to hold me six years in Guantanamo without either charging me or releasing me, in the absence of some special procedure in Congress for preventive detention.
That's the argument I want to make. I don't see anything in this CSRT provision that permits me to make that argument. So I'm asking you, where can you make that argument?
PAUL CLEMENT: I'm not sure that he can make that argument, Justice Breyer.
JUSTICE STEPHEN BREYER: Exactly. If you cannot make that argue, how does this become an equivalent to habeas, since that happens to be the argument that a large number of these 305 people would like to make?
PAUL CLEMENT: Well, Justice Breyer, let me take it this way, which is, of course, you're getting to the gravamen of their claim, which is that the DTA and the review provided in the D.C. Circuit is not an adequate substitute for habeas review.
RAY SUAREZ: So, Marcia, is the detainee's lawyer, Mr. Waxman, asking for immediate relief? Is his petition one to, you know, not wait until the end of the term, but make this decision right away?
MARCIA COYLE: Well, he certainly wants a decision as quickly as possible, but I think what he's ultimately asking the court to do is to, one, find that the great writ of habeas corpus applies here and that the remedy is released.
RAY SUAREZ: So, very quickly, if that argument prevails before these justices, does that mean that far more than the 37 people involved in today's case may be able to seek relief in the federal courts for their detention in Cuba?
MARCIA COYLE: Yes, if the argument prevails. And I would say that there are many issues now in the lower courts related to the detainees in Guantanamo Bay and the conduct, the legal issues surrounding the conduct of the war on terror.
Regardless of what the Supreme Court does here -- and this is a very important case -- there's going to continue to be litigation in the lower courts that ultimately will again get to the Supreme Court.
RAY SUAREZ: Marcia Coyle, thanks for joining us.
MARCIA COYLE: My pleasure, Ray.