Maverick
December 5th, 2007, 03:11 PM
Justices Hear Arguments in Guantánamo Cases
By DAVID STOUT
http://graphics8.nytimes.com/images/2007/12/05/world/gitmo_600.1.jpg
WASHINGTON, Dec. 5 — A lawyer for six detainees held at the Guantánamo Bay naval base in Cuba and the chief lawyer for the Bush administration waged a spirited argument before the Supreme Court today on whether the detainees have adequate means to challenge their captivity.
The prisoners “have been held in isolation for six years†and, in some cases, “plucked from their wives and children,†Seth P. Waxman, a lawyer for some of the prisoners, told the justices. Although he did not say it in so many words, he was arguing implicitly that their treatment is contrary to basic precepts of American justice.
But Paul Clement, the solicitor-general for the Bush administration, said that detainees at the base (just over 300 by a recent count) have all the rights they need, and all they are entitled to.
“Congress has spoken,†Mr. Clement said, referring to the Military Commissions Act of 2006, which authorizes military commissions to try the detainees and blocks them from challenging their detention before federal judges through what are known as habeas corpus proceedings.
The treatment of the detainees reflects “the best effort of the political branches, both political branches, to prosecute the war on terror,†Mr. Clement said.
After demurring at first, the justices agreed in June to take up the issue following criticism of the combatant status-review tribunals that were set up to handle the prisoners’ cases. The consolidated cases heard today were Boumediene v. Bush, No. 06-1195, and Al Odah v. U.S., 06-1196.
Lakhdar Boumediene is one of six Algerian detainees represented by Mr. Waxman. Unlike most of the Guantánamo detainees, who were captured in Afghanistan or Pakistan during the American-led military campaigns there following the terrorist attacks of Sept. 11, 2001, the Algerians were legal residents of Bosnia and were captured there in October 2001 on suspicion of plotting to attack the United States embassy in Sarajevo.
Today’s arguments were the latest in a series of cases in which the proper balance of national security and personal liberties have been argued. The situation of the Guantánamo detainees is further complicated by several factors: they were not fighting on behalf of a nation that had formally declared war on the United States, and they were not uniformed soldiers, so they are not exactly prisoners of war.
And they are being held in a highly unusual place — an American base on an island nation that is estranged from the United States — raising questions of what laws, and whose laws, should apply to their treatment.
But that last question has already been answered, at least as Mr. Waxman sees it. Of course, United States law, and by extension the writ of habeas corpus to challenge one’s detention, applies in Guantánamo, he argued. “If our law does not apply,†he said, “this is a law-free zone.â€
Justice Anthony M. Kennedy’s views on Guantánamo could be crucial if the justices are divided on the status of Guantánamo; in an earlier case, he said the base is “in every practical respect a United States territory.â€
Mr. Waxman, who was solicitor-general in the Clinton administration, and Mr. Clement took starkly differing views on how the detainees’ rights measure up, and in particular whether the procedures now in place are an adequate substitute for the writ of habeas corpus, a centuries-old means by which a person can challenge his imprisonment.
The remedies available to the detainees reflect a “remarkable, remarkable liberalization†of the protections historically enjoyed by foreigners who were held by the United States outside its borders, Mr. Clement said.
“Absolutely incorrect,†Mr. Waxman countered later.
In response to questions from the bench, Mr. Clement said each detainee is afforded “a personal representative†to assist him.
How is the representative chosen? Justice John Paul Stevens asked. By the military, Mr. Clement responded.
And is this representative required to relay to his superiors any useful intelligence gleaned from the detainee? Justice David H. Souter asked. When Mr. Clement answered in the affirmative, Justice Souter observed that the representative “is not in a position of counsel, as we understand the term.â€
The cases argued today attracted several hundred spectators, who lined up outside the Supreme Court building in hopes of getting inside. Several dozen camped overnight, braving the cold and the first snowfall of the season across the Washington area. “Restore habeas corpus!†some chanted.
By DAVID STOUT
http://graphics8.nytimes.com/images/2007/12/05/world/gitmo_600.1.jpg
WASHINGTON, Dec. 5 — A lawyer for six detainees held at the Guantánamo Bay naval base in Cuba and the chief lawyer for the Bush administration waged a spirited argument before the Supreme Court today on whether the detainees have adequate means to challenge their captivity.
The prisoners “have been held in isolation for six years†and, in some cases, “plucked from their wives and children,†Seth P. Waxman, a lawyer for some of the prisoners, told the justices. Although he did not say it in so many words, he was arguing implicitly that their treatment is contrary to basic precepts of American justice.
But Paul Clement, the solicitor-general for the Bush administration, said that detainees at the base (just over 300 by a recent count) have all the rights they need, and all they are entitled to.
“Congress has spoken,†Mr. Clement said, referring to the Military Commissions Act of 2006, which authorizes military commissions to try the detainees and blocks them from challenging their detention before federal judges through what are known as habeas corpus proceedings.
The treatment of the detainees reflects “the best effort of the political branches, both political branches, to prosecute the war on terror,†Mr. Clement said.
After demurring at first, the justices agreed in June to take up the issue following criticism of the combatant status-review tribunals that were set up to handle the prisoners’ cases. The consolidated cases heard today were Boumediene v. Bush, No. 06-1195, and Al Odah v. U.S., 06-1196.
Lakhdar Boumediene is one of six Algerian detainees represented by Mr. Waxman. Unlike most of the Guantánamo detainees, who were captured in Afghanistan or Pakistan during the American-led military campaigns there following the terrorist attacks of Sept. 11, 2001, the Algerians were legal residents of Bosnia and were captured there in October 2001 on suspicion of plotting to attack the United States embassy in Sarajevo.
Today’s arguments were the latest in a series of cases in which the proper balance of national security and personal liberties have been argued. The situation of the Guantánamo detainees is further complicated by several factors: they were not fighting on behalf of a nation that had formally declared war on the United States, and they were not uniformed soldiers, so they are not exactly prisoners of war.
And they are being held in a highly unusual place — an American base on an island nation that is estranged from the United States — raising questions of what laws, and whose laws, should apply to their treatment.
But that last question has already been answered, at least as Mr. Waxman sees it. Of course, United States law, and by extension the writ of habeas corpus to challenge one’s detention, applies in Guantánamo, he argued. “If our law does not apply,†he said, “this is a law-free zone.â€
Justice Anthony M. Kennedy’s views on Guantánamo could be crucial if the justices are divided on the status of Guantánamo; in an earlier case, he said the base is “in every practical respect a United States territory.â€
Mr. Waxman, who was solicitor-general in the Clinton administration, and Mr. Clement took starkly differing views on how the detainees’ rights measure up, and in particular whether the procedures now in place are an adequate substitute for the writ of habeas corpus, a centuries-old means by which a person can challenge his imprisonment.
The remedies available to the detainees reflect a “remarkable, remarkable liberalization†of the protections historically enjoyed by foreigners who were held by the United States outside its borders, Mr. Clement said.
“Absolutely incorrect,†Mr. Waxman countered later.
In response to questions from the bench, Mr. Clement said each detainee is afforded “a personal representative†to assist him.
How is the representative chosen? Justice John Paul Stevens asked. By the military, Mr. Clement responded.
And is this representative required to relay to his superiors any useful intelligence gleaned from the detainee? Justice David H. Souter asked. When Mr. Clement answered in the affirmative, Justice Souter observed that the representative “is not in a position of counsel, as we understand the term.â€
The cases argued today attracted several hundred spectators, who lined up outside the Supreme Court building in hopes of getting inside. Several dozen camped overnight, braving the cold and the first snowfall of the season across the Washington area. “Restore habeas corpus!†some chanted.