WASHINGTON – Nearly six years after foreign prisoners were first sent to Guantanamo Bay, Cuba, a divided Supreme Court debated Wednesday how to determine whether these men are dangerous enemy fighters or innocent bystanders caught up in the U.S. war against terrorism.
Regardless of what the court decides, the answer will not come for many months. And the likelihood is that even a ruling next spring in favor of the detained men would not necessarily result in immediate freedom for any of them. Unless the Bush administration acts to close Guantanamo, the fate of the prison and its inmates might rest with the next president.
Two options were before the Supreme Court on Wednesday. One was to treat Guantanamo as a military matter and to defer to the Pentagon to decide who will be held there or for how long.
The second option was to treat the detainees as U.S. prisoners, not enemy fighters. Under the Constitution and the traditions of American law, persons who are held by the government have a right to go before a judge and plead their innocence.
The justices appeared to be evenly split, with four leaning in favor of the Bush administration and the Pentagon, and four others in favor of allowing the detainees their day in court.
Justice Anthony M. Kennedy appeared to favor a middle course – one that would require the military to give full and fair hearings to the detainees at Guantanamo.
In several questions, Kennedy probed whether the Supreme Court simply could require the military to adopt new “standards and procedures” to ensure fair hearings for the detainees, such as giving them lawyers and a right to see the evidence against them.
U.S. Solicitor General Paul Clement, representing the Bush administration, replied that would be one option.
But Seth Waxman, the Clinton-era solicitor general who represented the detainees, said “the time for experimentation is over.” Many of the detainees, he pointed out, have been imprisoned for years without being told of the charges against them.
Through most of Wednesday’s argument, Kennedy sat silently while the lawyers and justices engaged in a historical dispute over whether the King of England exercised control over his “subjects” who were not English by birth and did not live in Britain. The U.S. Constitution’s “habeas corpus” protection, which gives prisoners a right to plead for their freedom in court, came from English law. So the question was whether this habeas right protects only American citizens within the United States or instead extends to all persons who are held by U.S. authorities in areas under U.S. control.
The Guantanamo detainees are not American citizens, but the U.S. naval base is on Cuban land that has been leased in perpetuity by the United States.
Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito appeared to agree the military prisoners at Guantanamo had no constitutional right to take their pleas to court.
Waxman’s argument that the habeas corpus protection did apply found favor with four other justices: John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Twice before, they had voted in favor of rights for the detainees.