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The arguments are over, and now the Supreme Court justices are pondering what, if any, rights the Constitution gives detainees at Guantanamo Bay, Cuba.
Last year, after the Bush administration lost two Guantanamo cases in the high court, the president turned to Congress. Lawmakers basically ratified the administration's procedures for determining which detainees are too dangerous to be released. Whether that law is constitutional is at the heart of the arguments made yesterday to the Supreme Court, as NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: At the behest of the Bush administration, Congress stripped the detainees of the right to challenge their detentions in court under the constitutionally guaranteed mechanism called a writ of habeas corpus. So now the question is whether the new law provides the effective and adequate alternative the Supreme Court has required in past wartime situations.
Yesterday, former Solicitor General Seth Waxman told the justices that the new law is not adequate and that the system for evaluating the detainees is so rigged as to be unconstitutional. The Combatant Status Review Tribunals, or CSRTs, as they're known, lacked any modicum of fairness, he said, because the detainees have little knowledge of the evidence against them, have no chance to rebut the evidence, are denied lawyers, and are denied independent judges free from command influence.
Mr. SETH WAXMAN (Former Solicitor General): All have been confined at Guantanamo for almost six years, yet not one has ever had meaningful notice of the factual grounds of detention or a fair opportunity to dispute those grounds before a neutral decision maker.
TOTENBERG: To illustrate his point, Waxman cited the case of a German who was released after four years in detention only because, said Waxman, he had something most detainees do not have - a lawyer. That lawyer filed a habeas corpus petition prior to Congress stripping the courts of habeas power. And in response, the government filed a reply listing its evidence, in particular an assertion that the detainee had associated with a named terrorist who'd blown himself up.
Mr. WAXMAN: Within 24 hours, his counsel had affidavits, not only from the German prosecutor, but from the supposedly deceased Mr. Bilgen, who is a resident of Dresden, never involved in terrorism, and fully getting on with his life.
TOTENBERG: That evidence would not have been allowed at a CSRT hearing, said Waxman, and that's why the alternative procedures enacted by Congress are inadequate. Furthermore, he said, such evidence would not be allowed under the appeals process established in the new law. That law limits appeals to one court. The federal appeals court here in Washington allows no Supreme Court review, and the law limits the appeal to claims that the Guantanamo tribunals failed to follow their own procedures - procedures which the detainees contend are deeply flawed.
Waxman's argument met with overt hostility from Chief Justice Roberts and Justice Scalia. Here, for example, is a question from Scalia.
Justice ANTONIN SCALIA: Do you have a single case in the 220 years of our country, or for that matter, in the five centuries of the English empire in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England?
TOTENBERG: Waxman answered, yes, he had many such examples dating as far back as the 1700s. But Scalia disputed his claims, and the two argued about the details of the cases until Waxman, fearing he was using up too much of his allotted time, pleaded exhaustion of the issue and moved on.
Justices Ginsburg and Alito both asked whether detainees held at bases other than Guantanamo - for example, in Germany or Iraq - also have the right to challenge their detentions in the U.S. courts. Waxman replied that Guantanamo is different because it is the only base where U.S. law has exclusive jurisdiction.
Mr. WAXMAN: In another place, jurisdiction would depend on the facts and circumstances, including the nature of an agreement with the resident sovereign over who exercises control.
TOTENBERG: Chief Justice Roberts asked whether the duration of the detention really matters. You'd still be making this same claim if these detainees had been held for only one day, wouldn't you? Waxman answered...
Mr. WAXMAN: There may be military exigencies; there may be a limited time period in which it is inappropriate for a habeas court of rule.
TOTENBERG: Defending the status quo against the detainees' challenge was the Bush administration's Solicitor General Paul Clement. For all practical purposes, he abandoned the arguments the governments made until now that the detainees have no constitutional rights and that if they do, they're very limited. Instead, Clement seemed to tell the justices that while the language of the new law limits the detainees' appeals, the Supreme Court can pretty much do anything it wants to broaden those rights under the law.
Chief Justice Roberts asked whether under the new law the appeals court can do the same thing that the court can do in a traditional habeas corpus proceeding - namely, order the detainee's release. Clement replied that if there is a defect in the Guantanamo proceeding, the appeals court should order a new hearing, not release. But, he added, if that isn't good enough, the new law has no obstacle to a court-ordered release. Justice Breyer focused his attention on the core claim of the detainees, that they're not enemy combatants and are being wrongly held. Where, he asked, in the existing process can a detainee make a claim that he's innocent?
Unidentified Man: I'm not sure that he can make that argument.
(Soundbite of overlapping voices)
Unidentified Man: ...cannot make that argument 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. If you compare what these detainees have under the DTA in terms of judicial review to what would have been available to them at common law in 1789, it is not even close.
TOTENBERG: These detainees have far more rights, Clement said, than prisoners of war have in the past. The Supreme Court, he said, should defer to the other two branches of government, which have tried to balance due process for the detainees with the needs of fighting a global war on terrorism. But Justice Souter observed that unlike previous prisoners in previous wars, these detainees are not classified as prisoners of war and have none of the rights of prisoners of war. Justice Alito then asked, what will happen if the court rules that the new law is not an adequate substitute for the traditional remedy of habeas corpus?
Justice SAMUEL ANTHONY ALITO: What will happen? Will these petitioners then have access to all of the procedures than normally apply in a habeas proceeding under 2241, the same right to discovery, subpoena witness - witnesses, access to classified information, presence in court?
Mr. PAUL CLEMENT (Solicitor General): The government will certainly take the position that they are not entitled to those things. Presumably, the petitioners will be arguing that they are entitled to those things, and there will be difficult questions that will need to be worked out.
TOTENBERG: Clement told the justices that they should at least allow the new law to play out before reaching any conclusion that the system is deficient and that the detainees are entitled to challenge their detentions outright in court. That prompted this from Justice Stevens.
Justice JOHN PAUL STEVENS: They say they have been unlawfully detained for six years, from the beginning. And isn't that delay relevant to the question whether they have been provided such a wonderful set of procedures?
TOTENBERG: Justice Breyer chimed in with a question about whether there's anything the Supreme Court can do to force the system to deal with these questions in a matter of months instead of six more years.
Judge BREYER: Habeas is supposed to be speedy.
TOTENBERG: Clement said that the court could order the appeals court to expedite consideration, but Justices Kennedy and Souter observed that under the new law the Supreme Court has no jurisdiction.
Justice ANTHONY KENNEDY: How can we say that? Your position is that we have no jurisdiction here.
Justice SOUTER: Yeah. If you win, we never get to these issues.
TOTENBERG: Even if the court rules against the administration, though, that ruling is not likely to come until at least spring. Meaning the Bush administration could easily run out the clock on these cases for its remaining months in office. That would leave Guantanamo for the next president to resolve.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
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