In a surprise development, the US Supreme Court agreed June 29 to hear an appeal they had refused to hear in April, asking whether “foreign citizens imprisoned indefinitely” by the US military can go to federal court and whether their imprisonment amounts to “unlawful confinement” from which a federal judge might free them. The court is to hear arguments next term, which begins Oct. 1.
The high court ruled three years ago that the hundreds of prisoners at Gitmo were entitled to a hearing before a neutral judge to challenge the government’s basis for holding them. President Bush and the then-Republican-controlled Congress responded by enacting a law to strip “unlawful enemy combatants” of their right to be heard in the federal courts.
The June 29 order may signal that a majority of the justices are prepared to rule that the Constitution’s habeas corpus guarantee gives the Guantanamo detainees the right to go to contest the government’s reason for holding them in court.
“The Supreme Court, along with the rest of the nation, should be sick and tired of what it’s seeing in Guantanamo,” said Matthew MacLean, an attorney for four Kuwaiti detainees at the prison. “It’s anybody’s guess what changed the Supreme Court’s mind, but I hope the justices are seeing the discomfort that so many people in this country and abroad have with Guantanamo.”
White House National Security Council spokesman Gordon Johndroe reacted to the justices’ announcement by saying: “We did not think that court review at this time was necessary, but we are confident in our legal position.”
The prison could be closed before the justices act. Defense Secretary Robert Gates has said he would like to move the detainees to another location, and congressional Democrats have threatened to cut off funding for the facility. Although former Defense Secretary Donald H. Rumsfeld described the Gitmo prisoners as the “worst of the worst,” many of them have been released.
Since terrorism suspects were first brought to Guantanamo five years ago, the Bush administration has argued that foreign fighters who are not part of a regular army have no rights under US law and are not “prisoners of war” entitled to rights under the Geneva Convention. However, in response to the court’s 2004 ruling, the Pentagon did agree to review the status of each prisoner held at Guantanamo. Under the “Combatant Status Review Tribunal,” three military officers examine the evidence. The detainee does not have a lawyer.
Last week, an Army lawyer who has participated in several the hearings, Lt. Col. Stephen Abraham, filed a sworn statement in an appeal before the Supreme Court that said officers were pressured to rule in favor of keeping the detainees in prison as “enemy combatants.”
“I certainly think the Abraham declaration proves what everyone has long surmised, that the CSRT process is just a kangaroo court that doesn’t provide any meaningful review,” said David Cynamon, the lead attorney in one of the cases the high court will consider, Al Odah vs. US (incorrectly rendered by the LA Times as Al Odah vs. Bush). “It seems to be the straw that broke the camel’s back.” Cynamon’s client, a Kuwaiti named Fawzi Al Odah, has been held for six years without charge.
The case has been consolidated with another involving six Algerian arrested in Bosnia in 2001 on suspicion of involvement in terrorism, but released by Bosnian authorities the following year for lack of evidence. They were immediately taken into custody by the US military and shipped to Guantanamo, where they have been held since. The lead plaintiff, Lakhdar Boumediene, was kept in a cold cell and deprived of sleep for 13 consecutive days, according to a report by the Center for Constitutional Rights.
In April, three of the court’s liberal justices—Stephen G. Breyer, David H. Souter and Ruth Bader Ginsburg—voted to hear the two cases. Justices John Paul Stevens and Anthony M. Kennedy said they were willing to wait while the cases went through an appeal process created by Congress, but the justices agreed that the issues involved were important. Attorneys for Boumediene and Al Odah petitioned the justices to reconsider, as their clients faced many months of appeals that would almost certainly fail. The new high court order does not say who voted to hear the case, but the lawyers involved assumed that Stevens and Kennedy had supplied the fourth and fifth votes. (LAT, June 30)