Dec 5, 2007, 19:36 GMT
Washington - Lawyers for prisoners in the war on terrorism appeared before the US Supreme Court on Wednesday seeking the right for their clients to challenge their detention at Guantanamo Bay, Cuba, in the federal court system.
Tom Willner, an attorney for the defense delivers remark to the news media outside the U.S. Supreme Court after oral arguments were heard in Al Odah v. U.S. in Washington, D.C. USA 05 December 2007. The case seeks to determine whether the Military Commissions Act of 2006 validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay. EPA/SHAWN THEW
The cases, Boumediene versus Bush and al-Odah versus the United States, marked the third time in as many years Guantanamo detainees have gone to the highest US court seeking access to the federal system.
Attorneys representing US President George W Bush's administration argued that the detainees were already able to challenge their detention through an existing legal process set up by the US military in Guantanamo.
During the hearing, the nine-member bench debated whether the United States was technically at war, which Justice Antonin Scalia suggested would justify the indefinite holding of detainees and barring their access to federal courts.
'We had 400,000 German prisoners in this country during World War II ... and not a single habeas (corpus) petition,' he said, using the legal term for the right of prisoners to challenge their detention in court.
Whether detainees have a right to habeas corpus has been the central theme of Guantanamo cases from the beginning.
Seth Waxman, attorney for the Guantanamo detainees, argued that even war-time captives had a 'fair opportunity' to challenge their detention and were given better access to lawyers and to evidence against them.
Justice David Souter appeared wary of leaving detainees rights solely in the hands of the military, telling government lawyer General Paul Clement that it was important for federal courts to at least be able to consider legal arguments from the detainees.
'Your position is we have no jurisdiction here,' Souter said. 'If you win, we never get to these issues.'
The Supreme Court has already twice ruled in 2004 and 2006 against attempts by the Bush administration to keep terrorism suspects from challenging their detentions in federal court.
The last ruling didn't strike down the policy, but instead ordered Bush to get congressional approval for the military commissions set up by the White House to try the detainees.
Congress complied, passing a law to authorize the process. The Supreme Court now has to decide whether that process is a good enough replacement for federal courts.
'The only remit they (detainees) have is the one that Congress provided,' said Justice Ruth Bader Ginsberg, questioning whether military tribunals were an 'adequate substitute' for the captives right to challenge their detention.
The court has been heavily divided on this issue in the past, and it's anyone's guess which way the court will go this time.
Justice Anthony Kennedy is usually considered the swing vote, but gave little indication of which way he was swaying on Wednesday. Most of his brief questions were directed at whether the military tribunals were robust enough to be a substitute for habeas corpus.
Many of the remaining 300 detainees at Guantanamo were captured soon after the September 11, 2001 attacks on New York and Washington and have been held without charge. Concerns about speeding up the process appeared to weigh on the minds of justices regardless of how they may rule.
General Paul Clement told the bench that under current rules, detainees can use the federal courts to challenge procedural aspects of the military process, even though they cannot specifically challenge their cases.
That led to some of day's most heated exchanges, as Breyer placed himself in the shoes of a detainee looking for recourse.
'I'm from Bosnia, I've been here six years, the constitution of the United States does not give anyone the right to hold me six years in Guantanamo without either charging me or releasing me,' he said. 'So, I'm asking you, where can you make that argument?'
'I'm not sure that he can make that argument,' Clement responded.
'Exactly,' Breyer shot back. 'How does this become an equivalent to habeas, since that happens to be the argument that a large number of these 305 people would like to make?'
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