The last time anyone made headlines involving the American penal colony at Guantanamo Bay, it was Mitt Romney, eagerly promising to expand it. "My view is we ought to double Guantanamo!" he enthused during a Republican presidential debate in May.
A sober audiotape of arguments before the Supreme Court next week, where the legal future of hundreds of alleged terrorists still held without charge or trial at the prison in Cuba is to be decided, probably won't produce such a snappy sound bite. The high court's decision to release a tape immediately after it hears arguments on this latest round of Guantanamo cases-a rare instance when the justices believe an issue has significant public interest-shows the court is getting serious.
It has been more than three years since the Supreme Court ruled that the Guantanamo detainees indeed have a right to contest their confinement before a U.S. court, and that the circumstances under which they are held-without charge, without having seen the government's evidence against them and without the ability to gather evidence of their own-violate the Constitution and various treaties the United States has signed.
But that ruling in Rasul v. Bush didn't prompt compliance. It touched off a round of cynical circumvention.
The Bush administration immediately created a system of military tribunals that afforded the detainees no genuine opportunity to present or see evidence. Congress stepped up and cheered on President Bush, enacting two laws that effectively endorse his kangaroo courts and strip American courts of jurisdiction over claims made by the prisoners. In other words, the administration and Congress both heard the Supreme Court and shunned it.
"Three years ago I told my clients that the Supreme Court had said ... that they would have their day in court, but it hasn't happened,'' says Marc Falkoff, an assistant law professor at Northern Illinois University who has long represented a group of detainees whose cases are to be heard Dec. 5.
Now the court must decide how to weigh this presidential and congressional contempt for its ruling. More crucially, it is to decide the central question raised by the Bush administration's legal theory that a president during wartime has broad powers to override such bedrock constitutional protections as the writ of habeas corpus, or the right of an individual to have a judge review why he is being detained. Though Congress denied habeas corpus rights to the Guantanamo detainees, one issue for the Supreme Court to decide is whether the legislation is valid when the country is not in a time of "rebellion or invasion," as the Constitution proscribes.
Those who listen to the tape of the oral arguments, available on C-SPAN Radio, may become turned off by discussions of obscure legal theories. But everyone should pay close attention to the stories of the men whose fate is at stake. One case involves six Algerians who were seized in 2002 by U.S. authorities in Bosnia-not in Afghanistan or near any battlefield-for allegedly plotting to attack the U.S. embassy in Sarajevo. Bosnian prosecutors, police and courts had found no evidence against the men, but they were brought to Guantanamo nonetheless. They were officially exonerated by the Bosnian government in 2004, which asked that the men be returned home. The Bush administration has refused.
Now in their fifth year of incarceration, they languish at Guantanamo. Many others at the prison have been shown by the military's own tribunal system to have no clear tie to any battle or terrorist act. Since the Supreme Court last heard a case involving the Guantanamo detainees, an Army Reserve officer who participated in the tribunals has come forward to describe a sham process in which supposed "statements of fact" against a detainee "lacked even the most fundamental earmarks of objectively credible evidence." Lt. Col. Stephen Abraham also has said, in a sworn affidavit, that tribunal panels were pressured to reverse themselves if they found a detainee not to be an "enemy combatant."
The Supreme Court has given itself another chance to speak loudly, and put this injustice to an end.
Marie Cocco's e-mail address is mariecocco(at)washpost.com.
© 2007, Washington Post Writers Group