by James Oliphant
Before a charged atmosphere at the Supreme Court Wednesday, lawyers for prisoners held at Guantanamo Bay, Cuba, made a direct appeal to the justices to clear the legal thicket that has prevented the government from determining which detainees pose a threat to the United States and which should be set free.
“The time for experimentation is over,” Seth Waxman, a former solicitor general under President Clinton, told the court.
Outside the court, dozens of protesters, some of them clad in orange jumpsuits, braved the cold and snow in Washington to maintain that the prison at Guantanamo had become an international eyesore for the United States.
The hearing was the latest in a six-year tug-of-war between the Bush administration, Congress and the court over whether some sort of constitutional rights should be given to suspected terrorists at Guantanamo. The administration has consistently argued that it is the exclusive province of the White House, along with the Pentagon, to decide how to treat so-called “enemy combatants” in wartime.
But every time the administration has made that case to the justices, it has lost—resoundingly. And while this case may be a closer call, many followers of the court expect a similar result.
The precise issue Wednesday is whether the remaining 300 or so foreign nationals at Guantanamo should be granted the right of habeas corpus, the opportunity to challenge their extended detentions in federal court, rather than be bound by the Pentagon’s determination of their status.
It appeared the court settled this issue in 2004, when it ruled that the habeas right extended to the navy base at Guantanamo, which, while on Cuban soil, is solely under the control of the United States. But Congress reacted to that ruling by passing legislation that stripped the detainees of the habeas right. Earlier this year, the federal appeals court in D.C. sided with the administration and Congress, setting up today’s showdown.
Waxman argued that an external process such as habeas was necessary for the detainees because the Pentagon’s procedures for classifying prisoners as enemy combatants, known as Combatant Status Review Tribunals, are “fatally flawed,” saying that they allowed for the use of evidence kept secret from the prisoners and were tilted in favor of the government.
His harshest critics were Justice Antonin Scalia and Chief Justice John Roberts, both of whom seemed inclined to defer to Congress’ decision to strip the federal court of jurisdiction to hear the habeas claims. Much of their critique revolved around whether a right of habeas corpus exists for foreign nationals independent of the law that Congress passed. That discussion visited distant principles of English common law and invoked the names of such 18th century British legal icons as Lord Mansfield.
Scalia charged that Waxman didn’t have a single case “in the 220 years of our country” and five centuries of British doctrine to support his argument. Waxman countered that he had several. “Line ‘em up,” Scalia responded. Later on, in response to Scalia's hectoring, Waxman said, "I have to plead exhaustion."
Meanwhile, arguing for the government, Solicitor General Paul Clement said that Congress’ actions were “the best effort of the political branches to provide additional process” for the detainees and suggested that they had been given greater rights under the law than any similarly-held prisoners in American history. He also maintained that administration’s longstanding view that “battlefield combatants can be detained indefinitely.”
Clement battled Justices Stephen Breyer and David Souter, both of whom were skeptical that the detainees could obtain a fair hearing under the current regime. Breyer reduced the conflict to its essence when he asked Clement whether, at any time, a detainee could make the basic legal argument keeping him for six years without charge violated the Constitution. "I'm not sure he can make that argument," Clement responded. "Exactly!" Breyer pounced.
“That happens to be the argument that these 305 people would like to make,” Breyer said.
Souter noted that Congress’ law didn’t specifically provide any mechanism for the release of detainees, meaning, he said, that a detainee simply could go through the CSRT process several times until he was classified an enemy combatant and held indefinitely.
Predictably, the key vote could come down to Justice Anthony Kennedy, who largely stayed quiet during the proceedings but who seemed concerned whether the court had the authority to provide some sort of legal remedy to the detainees. A ruling from the court isn’t expected for several months.
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Comments
It's time to put all those detainees on a plane, ship them back where they came from, and forget about this distorted justice that is doing nothing for nobody. It isn't even revenge anymore. Chances are those detainees will meet the same kind of unthinkable mercy that the justice systems in their homelands deal out to everybody they deem expendable. Better to let them do it than us.
Posted by: GW | December 5, 2007 3:13 PM
The reason BushCo doesn't want any of these guys to have a fair trial is because they don't even know who half of these guys are and yet they still insist on calling them "terrorists".
The Wingnuts have to call anyone with an Islamic sounding name a "terrorist" otherwise they wouldn't be able to keep all of the feeble minded Republic Party members (Johnny Dyslin, Brucie) voting for them and volunteering to give up all of their constitutional rights in the name of "freedom" and "security".
Posted by: John E | December 5, 2007 3:25 PM
Mr. Oliphant, in a very objective piece here (sarcasm), states the administration has always lost resoundingly. But then a couple of paragraphs later, comes this: "Earlier this year, the federal appeals court sided with the administration and Congress, setting up today’s showdown."
Oliphant also says this case could come down to which side Justice Kennedy comes down. Hmmmm, either way, how would a 5-4 decision be a "resounding" loss, Mr. Oliphant?
Posted by: John D | December 5, 2007 3:28 PM
"SUPREME COURT WILL RULE IN FAVOR OF THE BUSH ADMINISTRATION NO MATTER WHAT"
WHY? BECAUSE THEY HAVE YET TO PASS AN IMMIGRATION BILL IN THE UNITED STATES, AND THE BILLS BEING PROPOSED HAVE MARSHALL LAW IN MIND TOWARDS IMMIGRANTS OF ALL WALKS, AND THE LAST THING YOU WANT TO DO IS GIVE HABEUS CORPUS TO PERSON(S) OF THE UNITED STATES.
SO AMERICA, IF THE BUSH ADMINISTRATION HAS RENDERED A MAN OR A WOMAN FOR SIX YEARS WITHOUT DUE PROCESS THEN WHY WOULD YOU THINK HE WOULD DO SO NOW.
HE HAS YET TO LOCK UP YOU.
HE WOULD HAVE TO ALLOW THE AP REPORTER THAT HAS BEEN RENDERED ALSO SPEAK!
THAT WOULD BE IMPEACHMENT ORDERS AND THAT IS NOT GOING TO HAPPEN.
THE SUPREME COURT HAS BEEN HIJACKED AND IS BEING RENDERED THEMSELVES.
Posted by: Roger Morris | December 5, 2007 3:35 PM
Fortunately or unfortunately; the SUPREME COURT largely does nor decide 'cases' bsed on the publics sentiments.
In this case(s0 of detainees held at GUANTANAMO, CUBA, by the U.S. MILITARY - there is sufficient precedent to deny 'HABEAS CORPUS'. THESE DETAINEES ARE 'ENEMY COMBATANTS' - AS THAT TERM IS SO DEFINED - AND ARE SUBJECT ONLY ONLY TO MILITARY TRIBUNAL. These 'detainees' are not entitled to the protection of the laws of the UNITED STATES. There is no 'legal remedy' applicable to these 'detainees' in that the MILITARY has 'supreme jurisdiction' of enemy prisoners/combatants. PLEASE SEND THE 'JIHADISTS' COLOURFUL CHRISTMAS CARDS AND CARE PACKAGES OF PORK/HAM/BACON AND COUPONS FOR 'HOOTERS' OR 'SCORES' THE STRIP-CLUB FOR THE HOLIDAYS - TO LET THEM KNOW YOU CARE FOR THE PRESERVATION OF THEIR SOULS!!! Ha!
Posted by: Zyskandar A Jaimot | December 5, 2007 3:47 PM
GW, you do know that many Gitmo detainees have been released and sent back home only to be caught killing our troops again?
Good plan you got there, GW.
Again, elements of the Left are for the terrorists and against the American people and those in the military.
Posted by: John D | December 5, 2007 4:26 PM
Gitmo is the blackest mark in American history.
Someday all will know what crimes have been committed there.
If another country did to Americans what we are doing there, we would bomb them back to the stone age.
Imagine a beloved member of your family being treated as the prisoners at Gitmo are being treated.
Sure, some of those there deserve to be there, but not all. Problem is there's no way for anyone to know which is which.
Shame on Americans for letting this happen.
Posted by: San Miguel | December 5, 2007 4:58 PM
John D. The article is correct in saying the Supreme Court has always sided against the Bush Administration on this topic. This is coming to their court again because of an appeals court decision yes, but the Supreme Court has consistently sided against Bush on this issue.
Posted by: Josh | December 5, 2007 5:01 PM
Gitmo is another fine example, among many, of how the Republican Party in 7 short years has made us the most hated country on earth:
"Heckuva Job", Wingnuts!
http://bushspeaks.com/home.asp?did=150
Posted by: Billy Zoom | December 5, 2007 5:23 PM
Johnny D,
Your comment is hilarious. Do you remember when President Bush released an know Al-Qaeda operative who happened to be a citizen of Australia? All the terrorist had to do was play paddy cakes, cross his heart and promise he would never vow to destroy America again. Looks like your President, minions like you and Australia's PM are the ones who like to give cookies and crumpets and pardons to convicted terrorists
Posted by: john | December 5, 2007 5:31 PM
"WE ARE ALL ENEMY COMBATANTS IF YOU DON'T AGREE WITH THE ADMINISTRATION"
Isn't that the Al Queda ways and means of controlling Iraq. AH SHEIK and I don't mean the Condom either.
So if Habeus Corpus is a problem for you, then you are Al Queda because I do deserve due process.
How many people sit in prison for nothing, then 25 years later, the real guy sitting next to him did it. I'm sorry doesn't work when it comes to the law.
Has the american judicial system gotten that bad that we can't be allowed the right to know your accuser or address your accuser is slavery in the midst.
GET ON THE BOAT, OR YOU ARE AN ENEMY COMBATANT AND YOU MUST BE RENDERED UNTIL...I DIE OR YOU FIGURE OUT HOW STUPID I REALLY WAS.
HAS ANYONE BEEN CONVICTED OF BEING A TERRORIST? I DONT FEAR, FEAR. I FEAR MEN WHO DO THINGS ON UNACTIONABLE INTELLIGENCE BECAUSE THEY HAVE NONE.
Posted by: Roger Morris | December 5, 2007 6:00 PM
"GW, you do know that many Gitmo detainees have been released and sent back home only to be caught killing our troops again?"
Please provide links to reputable sources that back up the assertion you have made, Mr. Dyslin.
Posted by: Jones | December 5, 2007 6:07 PM
And if the SC finds for the detainees, bruciee, juannieeD and pillow will tell us the SC is comprised of known liberals that donate to democrat platforms.
This.is.so.boringly.repetitive.
You'd think these mental midgets would get some new material. They probably still like disco too!
Posted by: rncbs | December 5, 2007 6:37 PM
They probably still like disco too!
Posted by: rncbs | December 5, 2007 6:37 PM
Hey! Back off the disco. I call foul. Takes all kind of music to make the world go 'round.
Posted by: Phishfunk | December 5, 2007 8:31 PM
[quote]
GW, you do know that many Gitmo detainees have been released and sent back home only to be caught killing our troops again?
Posted by: John D | December 5, 2007 4:26 PM
[/quote]
Do you? Perhaps you can put your "journalistic" skills to good use and find the answer for everybody here.
Posted by: BC | December 5, 2007 10:48 PM
Ahhh, so Jones is actually BC. Was wondering where you had been, loser. Still think Cuba "is nowhere near the Gulf of Mexico in anyway whatsoever"?
You want links that former Gitmo detainees released have been caught again shooting at our troops. Here ya go, Dumba--:
http://www.freerepublic.com/focus/f-news/1166366/posts
And here are some headlines and the papers that ran them:
Here are some of the headlines that have occurred since. "Freed Detainees Rejoin Fight -- Ten Ex-Guantanamo Inmates Have Been Caught or Killed." Headline the Washington Post of October 2004. "Detainees Back in Battle -- At Least Eight Ex-Guantanamo Inmates Fighting Again in Afghanistan." Pittsburgh Post-Gazette. "Ten Freed from Cuba Return to Fighting." Chicago Tribune. "Freed Detainees Return to Jihad -- At Least 10 Militants Captured or Killed; Dupe Gitmo Captors of Intent." Orlando Sentinel.
Anything else Jones, er BC?
Posted by: John D | December 5, 2007 10:53 PM
Say the tables were turned and it is you who was looking for your case to be heard through the justice system. You claimed you've been falsely accused and detained indefinately.
How would you feel if you were denied access to the justice system and held indefinately?
Posted by: RDee | December 5, 2007 11:41 PM
In WWII, if the hundreds of thousands of Nazi POWs had Mr. Waxman and his ilk going to bat for them, the U.S. would have been so busy litigating their cases that we'd have lost the war.
Scalia is correct. The whole proceeding is unprecedented--and insane.
Posted by: Chancellor Kent | December 6, 2007 12:11 AM
GW, you do know that many Gitmo detainees have been released and sent back home only to be caught killing our troops again?
Good plan you got there, GW.
Again, elements of the Left are for the terrorists and against the American people and those in the military.
Posted by: John D | December 5, 2007 4:26 PM
Dyslin...if I hadn't seen your name and picture with my own eyes (Thanks Reamer), I would sware you weren't a real person. Only a lonely troll or a complete fool would utter such nonsense. BTW, in the words of Dan Hampton, you're a "buiscut" under 350 if your a pound. Prefontaine you're not, but Mini-Fridge, maybe.
Posted by: the anti-bruce | December 6, 2007 12:22 AM
Jones:
Look at:
http://www.defenselink.mil/news/d20070712formergtmo.pdf
- and,
http://doctorbulldog.wordpress.com/2007/07/27/predictable-results-for-released-guantanamo-detainees/
- and,
http://en.wikipedia.org/wiki/List_of_released_Guantanamo_prisoners_who_allegedly_returned_to_battle
- all of which state that at least 30 former Guantanamo detainees were either killed or captured in military action against NATO, American and other coalition forces after their release from detention.
John D. was right.
Posted by: John W. | December 6, 2007 3:14 AM
At this point, those Gitmo detainees are so damaged that I imagine they would take the first opportunity to get some revenge upon release. Too bad we didn't provide a good example of American justice from the get-go (like not invading a country that hadn't attacked us). They are this administration's poster children. They broke them and they own them. They deserved to be tried for any crimes, fairly judged and sentenced in a speedy trial. What a banana republic we've become.
Posted by: DD | December 6, 2007 4:47 AM
Guantanamo is a disgrace.
You cannot claim to embrace democratic and human values and support this kind of Nazi-like activity.
And what a bizarre example of double-think it is to say it's okay to carry on this way on a piece of stolen property at your doorstep but not okay over the doorstep.
Posted by: John Chuckman, Toronto, Canada | December 6, 2007 9:03 AM
The anti-bruce, er John E., me around 350 pounds???? Wow, you really do a lot of drugs, don't you. The drugs have not only distorted any ability you ever had to think rationally, but also to see clearly.
But Johnnny E., er rncbs, because of all the checking up you do in my personal life, we all know you have a secret love thing going on for me. We've talked about your infatuation with me before. I'll say this again. You are not my type. I'm sure BC, er Jones, might be willing to accept your advances as his wife no longer has any interest in his schoolgirlish screams anymore. BC and John E: a match made in heaven, er hell.
Posted by: John D | December 6, 2007 9:48 AM
John Chuckman get over it you are a Canadian I don't care what you think.
Members of AlQuaeda are Islamic jihadists and human animals who do not respect our constitution or our moral values. They routinely kill innocent children and women in Iraq and Afghanistan and in Israel. They hold up in mosques, schools,playgrounds etc and hide behind their religion.
They have hi-jacked their own religion for their purposes.
Since they are enemy combatants they don't have American civil rights and the Supremes should not give this to them.
These Islamofascists care not for America and we care not for them as they cut peoples headsoff or blow them up with suicide vests.
If you love your children or grand children you want to make the world safer for them. We must be victorious or we will perish period.Jerry White, Springfield, IL P.S. We must stand tough!
Posted by: Jerry White | December 6, 2007 10:38 AM
Pay attention people!
Gitmo works and I for one
hope they do not do away with it. How many times have they let inmates go
only to have them met once more on the battlefield. How many more good soldiers of our forces and those that are helping us out need to die before the need from Gitmo is finally realized.
Posted by: Paul Jaeger | December 6, 2007 11:12 AM
Dyslin,
So, BC posts a similar thought to mine (and many many others) that Dyslin throws around all kind of baseless assertions and needs to back them up 4+ hours after I do, and that makes me BC?
Actually, I'll give you a hint: I've consistently railed against yours and his petty and unbearably boring feud over John Edwards/ George Bush's suits and Cuba being in the Gulf of Mexico. I think both of you could benefit from keeping your eyes on the prize.
Does that sound like something I would say about myself?
Posted by: Jones | December 6, 2007 12:29 PM
Posted by: GW | December 5, 2007 3:13 PM
GW, I have to disagree with you on this, although I'm thoroughly not in favor of our current policy.
Just letting these guys loose would mean unleashing SOME OF THEM that REALLY ARE COMBATANTS, and I find that unconscionable. What I'd argue for is that they be tried -- NOW -- under our legal system, with charges being given to them, the opportunity to have a lawyer, witnesses, and the whole 9 yards, and let the law sort out who should be freed and who should be sentenced and kept in jail (this time, though, LEGITIMATELY).
Posted by: Op109 | December 6, 2007 4:18 PM
I think GW has a good thought about putting the detainees on planes back to their countries. I would put in one of two wringles:
One, when the plane lands, make sure all his terrorist buddies are present, and bid adeau to the lad with a lot of hugs and handshakes - and a "thanks for all information" shouted out.
Or
Two, fly them back to their country but tell them its too dangerous to land and give them a parachute and wish them good luck.
Posted by: Terry | December 6, 2007 8:11 PM