Showdown on detainees' rights

Guantanamo inmates press Supreme Court

Protesters in prisoner jumpsuits stood outside the Supreme Court yesterday as the court heard arguments on whether detainees should be granted hearings before a federal judge. (Lawrence Jackson/Associated Press)

WASHINGTON - Imprisoned without trial for years at Guantanamo Bay with no end in sight, a group of detainees yesterday begged the Supreme Court to grant them hearings before a federal judge so they can challenge the Bush administration's accusation that each is a terrorist.

"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," said the prisoners' lawyer, Seth Waxman, who was the Clinton administration's solicitor general from 1997 to 2001. "Each maintains . . . that he is innocent of all wrongdoing."

But Paul Clement, the Bush administration's solicitor general, urged the justices to rule that the Constitution gives detainees no such right to a day in court. He said the justices should instead uphold laws enacted in 2005 and 2006 that limit detainees to a hearing before a panel of military officers, without a lawyer or a right to see the government's evidence against them.

Clement said the military hearings represented the "best efforts" of both Congress and the White House "to try to balance the interest in providing the detainees" with hearings while still meeting "the imperative to successfully prosecute the global war on terror."

The Guantanamo case is being watched closely both in the United States and overseas. The Supreme Court is expected to issue a ruling before its term ends in June 2008, ensuring that its decision will become part of the national debate amid the presidential campaign.

Despite falling snow, about 50 people camped out overnight on the court's steps to get in line for a seat at yesterday's showdown, and protesters in orange prisoner jumpsuits and black hoods chanted slogans against the Guantanamo policy outside the court.

Inside the packed courtroom, the current and former solicitors general dueled throughout the hearing. Waxman, who went first, faced repeated demands by Justice Antonin Scalia to cite historical precedents for courts giving hearings to foreign prisoners who were being held overseas.

"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 [the right to a hearing challenging detention] was granted to an alien in a territory that was not under the sovereign control of either the United States or England?" Scalia said.

Replied Waxman: "The answer to that is a resounding yes."

Waxman rattled through an array of cases and statutes that he said supported the prisoners' right to a day in court. But Scalia rejected each example on various grounds, eventually prompting Waxman to jokingly "plead exhaustion" from trying to overcome the conservative justice's skepticism.

Clement faced intense grilling from the court's liberal members. Justice David Souter said that sometimes the military's review panels decided that a prisoner should be released, only to have the Pentagon order a do-over hearing that "conveniently" found that the detainee should stay at Guantanamo.

Souter suggested that the military hearings were no substitute for a day in court. But Clement disagreed, insisting that Congress had decided the military hearings were adequate.

There are three potential outcomes in the case. The justices could side with the government and throw out the detainees' lawsuit. Or they could side with the detainees and order district court judges to start holding fact-finding hearings for each detainee who says the government has made a mistake in accusing him of being a terrorist.

Finally, the justices could rule that the detainees have a constitutional right to some kind of hearing, but send the case back to a lower court to examine whether the military's hearings are an adequate substitute for a day in court. An appeals court had ruled that detainees have no right to a hearing, so the lower judges did not need to evaluate the quality of the military hearings.

Many observers predict that Justice Anthony Kennedy will decide what happens in the case because he often has been the swing-voter between factions of four liberals and four conservatives. Kennedy was mostly silent during the hearing, but asked several questions related to whether it made any legal difference that six years had passed since the detainees came to Guantanamo.

Seizing the opportunity, Waxman told Kennedy that the men who have been at Guantanamo for six years should get their day in court now through regular hearings before a federal judge.

"This court should issue a ruling saying for these people, if the [right to challenge one's detention in court] means anything, the time for experimentation is over," Waxman said.

Clement downplayed the significance of the prisoners' long incarceration. He noted that Congress did not pass legislation setting up procedures for handling prisoner hearings until December 2005. "Of course, when you do something unprecedented, new questions will arise," he said.

The United States has brought about 800 men to Guantanamo since the prison opened in January 2002, and it is currently holding about 300.