Some 595 foreign nationals, who have been designated “enemy combatants” by the government, remain at the camp without access to the courts. Most of the men were seized during the U.S.-led military campaign in Afghanistan against the Taliban government and Osama bin Laden’s al-Qaida network after the Sept. 11, 2001, attacks on the United States.
The high court combined appeals from two British, two Australian and 12 Kuwaiti nationals who claim they are being unlawfully held. The lawyers working on the suits have apparently not met their clients although a few Guantanamo detainees have been granted access to attorneys recently, according to the Associated Press.
The Supreme Court is considering only whether American courts have jurisdiction, and not the conditions of the detentions or the full extent of the detainees’ legal rights.
The Guantanamo appeals and two other cases being argued next week are considered important markers in determining the powers of the president and the federal government to conduct a new type of war of terrorism.
During Tuesday’s arguments, attorney John Gibbons, a retired U.S. appeals court judge arguing on behalf of the detainees, said the United States has created a “lawless enclave” at the military base.
Gibbons purported “it’s been plain for 215 years” that people in federal detention may file petitions in U.S. courts.
Chief Justice William Rehnquist noted that the detainees are not on American soil, and asked how a judge in Washington is to deal with a case from Cuba.
Gibbons held that the men should have some way to get their complaints before a judge. The United States holds the only real control over the Guantanamo Base, and U.S. law governs what happens there, Gibbons replied.
“No other law applies there. Cuban law doesn’t apply there,” he said.
Detainees are currently only eligible to have their cases evaluated by a military tribunal.
Solicitor General Theodore Olson, whose wife died in September 11 attacks, argued the case on behalf of the government. The Bush administration asserts the right to hold and interrogate the men as long as necessary, without formal charges or the guarantee of a trial or access to a lawyer.
The administration also maintains that the men are not traditional prisoners of war, who would have guaranteed rights under the Geneva Convention.
Justice Stephen Breyer asked Olson if the lack of a U.S. judicial presence at Guantanamo would mean there would be no checks and balances on the president’s power there.
“The executive would be free to do whatever they want,” said Breyer.
Olson disagreed, saying the United States routinely asserts temporary or nominal control over foreign territory such as military bases.
“It would be remarkable for the judiciary to start deciding” when and where the United States could do that, Olson said.
“The United States must have and does exercise relatively complete control. Every argument that’s being made here today could be made by the 2 million persons that were in custody at the end of World War II and judges would have to decide the circumstances of their detention, whether it’s been adequate military process, what control existed over the territory in which they were being kept,” he said.
Some spectators for Tuesday’s arguments camped out overnight, and a line of several hundred people snaked around the building, according the AP.
The court’s ruling on the cases is expected sometime in June. The court will hear arguments in two additional cases next week that will challenge whether American “enemy combatants” can be held by the military in this country without access to the courts.