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Supreme Court will hear first appeals involving Guantanamo detainees
From Bill Mears
CNN Washington Bureau
Tuesday, November 11, 2003 Posted: 1:27 AM EST (0627 GMT)
WASHINGTON (CNN) -- In the first test of the Bush administration's sweeping anti-terrorism policies, the U.S. Supreme Court on Monday agreed to hear two appeals over whether hundreds of terrorist suspects in secret custody are being held unlawfully.
It is the first time the justices will review the constitutionality of the White House's war on terror laws that have grown from the September 11, 2001, attacks.
Arguments in the appeals will be heard sometime early next year, with a ruling expected by June.
The cases involve the overseas detention of some 660 men from about 40 countries, said to be al Qaeda or Taliban fighters. Some have been held for as long as two years at the U.S. Navy base in Guantanamo Bay, Cuba, without access to lawyers or family.
The government has been interrogating the men, and deciding whether they will face a military tribunal or released back to their home countries. Most of the men were captured on the battlefield in Afghanistan and Pakistan.
At issue is whether U.S. courts have jurisdiction to intervene in the continued U.S. military detention of people held overseas, and whether that violates constitutional and international law.
Solicitor General Theodore Olson, in the Justice Department's brief, said the detentions are lawful since "American soldiers and their allies are still engaged in armed conflict overseas against an unprincipled, unconventional, and savage foe."
A list of prominent former judges, POWs, human rights groups and retired military are protesting the detention, in briefs filed with the court. The Associated Press reported that among those listed on the briefs protesting detention was Fred Korematsu, whose name is on a Supreme Court case that upheld U.S. detention of Japanese-Americans during World War II.
The first appeal was brought by parents of four detainees. Shafiq Rasul and Asif Iqbal are British citizens, and David Hicks and Mamdouh Habib are from Australia. Hicks is one of six detainees President Bush has recommended face military tribunals.
A separate group of relatives of 12 Kuwait men detained also brought a habeas corpus claim, demanding the government explain why it continues to hold the men in secret.
The U.S. military says its interrogations have yielded important intelligence information. The government cites a 53-year-old case as precedent for denying courts the habeas corpus jurisdiction to hear appeals of non-citizens held on non U.S. soil. A writ of habeas corpus is used to bring a prisoner before the court to determine if the person's detention is lawful and justified.
A federal appeals court agreed with the government, prompting the most recent appeal. (Full story)
But Michael Ratner, president of Center for Constitutional RIghts, a New York-based group representing the detainees in their appeal, said courts should not duck their responsibility to intervene.
"This lawless situation must not continue," Ratner said. "Every imprisoned person should have the right to test the legality of their detention. It is this basic principle that has been denied to our clients."
In its appeal to the court, attorneys for the detainees said it fears the government "may simply forget them, in the vain hope the world will, as well."
The Supreme Court in March rejected hearing a similar appeal involving the Guantanamo detainees, filed on their behalf by a group of clergy, lawyers and civil rights advocates.
Until now, the justices so far had not been willing to interfere with enforcement of various Justice Department policies. The Court in May rejected an appeal to allow public access to closed hearings involving hundreds of so-called "special interest" immigrants, many of them of Muslim or Arab descent, who were detained in near secrecy shortly after the terror attacks two years ago (North Jersey Media Group v. Ashcroft, case no. 02-1289). A similar challenge is still pending before the courts.
The justices in March also rejected hearing an appeal from the ACLU over government surveillance powers, which were increased with passage of the USA Patriot Act by Congress shortly after the September 11, 2001, attacks.
Some Supreme Court watchers expected the justices to quickly tackle certain terror-related cases.
"I would think they would want to hear these cases rather soon, if the right kind of legal challenge is presented (to the justices)," said Eugene Fidell, a military law attorney. "These are incredibly important issues that need to be resolved. I don't know why they wouldn't want to do it."
But others said they understood the justices' go-slow approach, waiting for appeals to fully work their way through the lower courts.
"Most of the trains haven't arrived yet at the station," said David Garrow, a Pulitzer Prize-winning author and leading court historian.
Other challenges in the legal pipeline include:
• The detention of two so-called "enemy combatants," a special designation of people who are not afforded rights normally given military prisoners. Jose Padilla and Yaser Hamdi are U.S. citizens who are not yet charged with any crime, are being held in U.S. custody indefinitely, and have no access to a lawyer.
• Padilla and Hamdi could face special military tribunals, designed for a handful of those captured in the war on terror. These trials would be held in secret and even if found not guilty, the defendant could remain in custody indefinitely. The government promises full and fair trials, but so far none have been announced, and the guidelines are still being worked out.
• The requirement of male visitors in the U.S. from certain countries, most from the Middle East and South Asia, to register with the government and to provide fingerprints and photographs. Families of the men, as well as some legal groups say this policy represents "racial profiling," with no clear justification for the war on terror.
• Further challenges to the detention policy of mostly Muslim immigrants. The Justice Department says most of those picked up shortly after the September 11, 2001, attacks have since been deported, or had their cases resolved. Civil rights groups fear a new wave of immigrant roundups by the government.
• And the case of Zacarias Moussaoui, an admitted al Qaeda operative, who is accused by the government of having a role in the September 11, 2001, conspiracy. His pending trial in civilian court remains stalled, and the Court may eventually have the final word whether Moussaoui can question other alleged terrorists who may be helpful to his case.
"The Moussaoui case is nearing the end game," Fidell said. "The government may want to exhaust all its appeals, and then they could very well wind up sending him to a military court."
In the midst of an undeclared war on terrorism, the courts could ultimately establish new legal precedent. "There are issues we have never dealt with before," said David Yalof, a political scientist at the University of Connecticut. "And some of it has to be made up as we go along. It may be why the Supreme Court is not eager to circumvent the ongoing process. At the very least they may want multiple [lower] courts to look at these cases before they get involved."
The cases are Rasul v. Bush, case no. 03-0334 and Odah v. U.S., case no. 03-0343.
http://www.cnn.com/2003/LAW/11/10/scotus.detainees/index.html
From Bill Mears
CNN Washington Bureau
Tuesday, November 11, 2003 Posted: 1:27 AM EST (0627 GMT)
WASHINGTON (CNN) -- In the first test of the Bush administration's sweeping anti-terrorism policies, the U.S. Supreme Court on Monday agreed to hear two appeals over whether hundreds of terrorist suspects in secret custody are being held unlawfully.
It is the first time the justices will review the constitutionality of the White House's war on terror laws that have grown from the September 11, 2001, attacks.
Arguments in the appeals will be heard sometime early next year, with a ruling expected by June.
The cases involve the overseas detention of some 660 men from about 40 countries, said to be al Qaeda or Taliban fighters. Some have been held for as long as two years at the U.S. Navy base in Guantanamo Bay, Cuba, without access to lawyers or family.
The government has been interrogating the men, and deciding whether they will face a military tribunal or released back to their home countries. Most of the men were captured on the battlefield in Afghanistan and Pakistan.
At issue is whether U.S. courts have jurisdiction to intervene in the continued U.S. military detention of people held overseas, and whether that violates constitutional and international law.
Solicitor General Theodore Olson, in the Justice Department's brief, said the detentions are lawful since "American soldiers and their allies are still engaged in armed conflict overseas against an unprincipled, unconventional, and savage foe."
A list of prominent former judges, POWs, human rights groups and retired military are protesting the detention, in briefs filed with the court. The Associated Press reported that among those listed on the briefs protesting detention was Fred Korematsu, whose name is on a Supreme Court case that upheld U.S. detention of Japanese-Americans during World War II.
The first appeal was brought by parents of four detainees. Shafiq Rasul and Asif Iqbal are British citizens, and David Hicks and Mamdouh Habib are from Australia. Hicks is one of six detainees President Bush has recommended face military tribunals.
A separate group of relatives of 12 Kuwait men detained also brought a habeas corpus claim, demanding the government explain why it continues to hold the men in secret.
The U.S. military says its interrogations have yielded important intelligence information. The government cites a 53-year-old case as precedent for denying courts the habeas corpus jurisdiction to hear appeals of non-citizens held on non U.S. soil. A writ of habeas corpus is used to bring a prisoner before the court to determine if the person's detention is lawful and justified.
A federal appeals court agreed with the government, prompting the most recent appeal. (Full story)
But Michael Ratner, president of Center for Constitutional RIghts, a New York-based group representing the detainees in their appeal, said courts should not duck their responsibility to intervene.
"This lawless situation must not continue," Ratner said. "Every imprisoned person should have the right to test the legality of their detention. It is this basic principle that has been denied to our clients."
In its appeal to the court, attorneys for the detainees said it fears the government "may simply forget them, in the vain hope the world will, as well."
The Supreme Court in March rejected hearing a similar appeal involving the Guantanamo detainees, filed on their behalf by a group of clergy, lawyers and civil rights advocates.
Until now, the justices so far had not been willing to interfere with enforcement of various Justice Department policies. The Court in May rejected an appeal to allow public access to closed hearings involving hundreds of so-called "special interest" immigrants, many of them of Muslim or Arab descent, who were detained in near secrecy shortly after the terror attacks two years ago (North Jersey Media Group v. Ashcroft, case no. 02-1289). A similar challenge is still pending before the courts.
The justices in March also rejected hearing an appeal from the ACLU over government surveillance powers, which were increased with passage of the USA Patriot Act by Congress shortly after the September 11, 2001, attacks.
Some Supreme Court watchers expected the justices to quickly tackle certain terror-related cases.
"I would think they would want to hear these cases rather soon, if the right kind of legal challenge is presented (to the justices)," said Eugene Fidell, a military law attorney. "These are incredibly important issues that need to be resolved. I don't know why they wouldn't want to do it."
But others said they understood the justices' go-slow approach, waiting for appeals to fully work their way through the lower courts.
"Most of the trains haven't arrived yet at the station," said David Garrow, a Pulitzer Prize-winning author and leading court historian.
Other challenges in the legal pipeline include:
• The detention of two so-called "enemy combatants," a special designation of people who are not afforded rights normally given military prisoners. Jose Padilla and Yaser Hamdi are U.S. citizens who are not yet charged with any crime, are being held in U.S. custody indefinitely, and have no access to a lawyer.
• Padilla and Hamdi could face special military tribunals, designed for a handful of those captured in the war on terror. These trials would be held in secret and even if found not guilty, the defendant could remain in custody indefinitely. The government promises full and fair trials, but so far none have been announced, and the guidelines are still being worked out.
• The requirement of male visitors in the U.S. from certain countries, most from the Middle East and South Asia, to register with the government and to provide fingerprints and photographs. Families of the men, as well as some legal groups say this policy represents "racial profiling," with no clear justification for the war on terror.
• Further challenges to the detention policy of mostly Muslim immigrants. The Justice Department says most of those picked up shortly after the September 11, 2001, attacks have since been deported, or had their cases resolved. Civil rights groups fear a new wave of immigrant roundups by the government.
• And the case of Zacarias Moussaoui, an admitted al Qaeda operative, who is accused by the government of having a role in the September 11, 2001, conspiracy. His pending trial in civilian court remains stalled, and the Court may eventually have the final word whether Moussaoui can question other alleged terrorists who may be helpful to his case.
"The Moussaoui case is nearing the end game," Fidell said. "The government may want to exhaust all its appeals, and then they could very well wind up sending him to a military court."
In the midst of an undeclared war on terrorism, the courts could ultimately establish new legal precedent. "There are issues we have never dealt with before," said David Yalof, a political scientist at the University of Connecticut. "And some of it has to be made up as we go along. It may be why the Supreme Court is not eager to circumvent the ongoing process. At the very least they may want multiple [lower] courts to look at these cases before they get involved."
The cases are Rasul v. Bush, case no. 03-0334 and Odah v. U.S., case no. 03-0343.
http://www.cnn.com/2003/LAW/11/10/scotus.detainees/index.html
