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Guantanamo Policy on Trial; Stakes Extremely High for Bush
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Guantanamo Policy on Trial
Lawyers Question U.S. Right to Detain Prisoners
In re-election year, Stakes Extremely High for Bush
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by Tim Harper
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WASHINGTON—The U.S. Supreme Court began weighing the historic question of the power of a wartime president yesterday, hearing the first of a series of challenges to the Bush administration's policy of holding what it calls "enemy combatants" without trial.
At least five of the nine justices raised grave questions over U.S. President George W. Bush's contention that a nation at war against terrorism has the right to hold almost 600 prisoners at the Guantanamo Bay naval base in Cuba without charging them or permitting them access to courts or legal advice.
"It seems rather contrary to an idea of a constitution with three branches that the executive would be free to do whatever they want — whatever they want — without a check," said Justice Stephen Breyer.
Detainees sit in a holding area at the Guantanamo Bay, Cuba detention facility in this January 11, 2002 file photo. The Supreme Court considers on April 20, 2004 whether foreigners held at the U.S. naval base can go to American courts for relief, the first time it examines President George W. Bush (news - web sites)'s policies in the 'war on terrorism.' In arguments in one case on Tuesday and two other cases next week, the high court will weigh civil liberties concerns against national security arguments as the government makes a broad assertion of presidential power.
(U.S. Navy/Reuters)
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Interest in yesterday morning's oral arguments was such that some people camped out overnight for seats inside the courtroom, and hundreds of protesters, tourists, legal aficionados and the simply curious jostled for space inside the court.
The stakes are huge for Bush as he campaigns for re-election on a platform which includes his claim that he is better positioned to keep Americans safe than his presumptive Democratic challenger, Massachusetts Senator John Kerry.
Beyond the immediate prospects for Bush, the court's decision on this and two pending challenges will likely define presidential power in extraordinary times for years to come.
John Gibbons, representing 16 detainees from Kuwait, Britain and Australia, argued the Bush administration was trying to establish a "lawless enclave" at Guantanamo where they would be outside scrutiny and checks.
The Bush administration has maintained it is protecting the nation in the wake of the Sept. 11, 2001, terrorist attacks and in a country at war, the president has the responsibility to keep the enemy detained.
"The United States is at war," argued U.S. Solicitor-General Theodore Olson, whose wife Barbara was killed in the attacks.
"Over 10,000 American troops are in Afghanistan today in response to a virtually unanimous congressional declaration of an unusual and extraordinary threat to our national security, and an authorization to the president to use all necessary and appropriate force to deter and prevent acts of terrorism against the United States."
Among those being held in Guantanamo — most of whom were taken prisoner in Afghanistan — is a 17-year-old Canadian, Omar Khadr, one of only a handful of teens still at the prison camp.
He is being represented by Dennis Edney of Edmonton, who filed a brief on Khadr's behalf with the court and attended yesterday's hearing.
Khadr, 15 when arrested, is accused of killing an American soldier in Afghanistan.
"If he is alleged to have committed a crime, then we should see some evidence," Edney said.
"This is a kid with two bullet wounds who has lost the sight in one eye."
Khadr's mother, Maha Elsamna, and his brother Karim, 15, recently arrived home in Scarborough from Pakistan, where Karim was shot and paralyzed by Pakistani troops during a battle that killed his father, Ahmed Said Khadr, a member of Al Qaeda.
Yesterday's hearing dealt with whether U.S. courts have jurisdiction outside the United States.
The Bush administration argues that Cuba, not the United States, has sovereignty in Guantanamo Bay.
Gibbons said yesterday that lower courts — which have sided with the administration on the detainees — relied on some "mystical, ultimate sovereignty of Cuba" while in fact, the naval base is under complete U.S. control.
Justice Ruth Bader Ginsburg agreed with him, saying the treaty gives the U.S. "complete jurisdiction" and wondered why Guantanamo was not being treated "like a federal enclave within a state?"
Gibbons argued it was clear that the U.S. had jurisdiction at Guantanamo, which it has leased from Cuba since 1903.
If one detainee assaulted another there, he argued, they would be prosecuted under American law because Cuban law does not apply there.
"A stamp with Fidel Castro's picture on it wouldn't get a letter off the base," he said.
When Justice Sandra Day O'Connor asked the U.S. solicitor-general whether an American held at Guantanamo would be able to challenge his or her detention there, Olson said yes, they would.
Edney said he believed the questions from the bench showed the Supreme Court justices want to protect the high court's right as guardian of the U.S. constitution and restrain governments from acting without any oversight.
Edney said he was arguing for rule of law to apply to Khadr, but was really making his case on behalf of all Canadians detained abroad.
In his brief, he argues that the United Nations Convention on the Rights of the Child must apply at Guantanamo and that, in this day and age, domestic law in any particular country must be harmonized with international law.
"I'm speaking to an administration which refuses to accept that," he said.
Edney also said rights of children under the convention, ratified by 160 nations, acknowledges they have a special place in society and should have rights and protections sometimes not afforded to adults.
Certainly, one of those rights should be a right to a lawyer, and rights to visits from government officials from the person's home country, both denied Khadr, Edney said.
The U.S. stands with Somalia as one of two nations to sign the U.N. convention but not ratify it, Edney said.
Two more related hearings scheduled later this month will deal with questions surrounding the rights of Americans arrested in the war on terror.
The court's decision is expected in late June.
© Copyright 2004 Toronto Star Newspapers Limited
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