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US top court to decide Guantanamo cases
Reuters ^ | 11/10/2003 | Reuters

Posted on 11/10/2003 1:15:12 PM PST by kkindt

US top court to decide Guantanamo cases Mon 10 November, 2003 19:37 RELATED ARTICLES Guantanamo prisoners' advocates hail Supreme Court

By James Vicini

WASHINGTON (Reuters) - The U.S. Supreme Court say it will decide whether foreign nationals can use American courts to challenge their incarceration at the U.S. military base in Guantanamo Bay, Cuba, the first cases it will hear on the Bush administration's war on terror.

The justices agreed on Monday to rule on whether U.S. courts have the power to consider challenges by a group of Afghan war detainees to their continued confinement without access to families or lawyers, and with no charges brought against them.

The nation's high court will hear an hour of arguments in the spring, with a ruling due by July in a pair of cases that could decide the judiciary's role to review certain government's actions in the war on terror.

The justices said in a written order they would decide whether U.S. "courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba."

The high court agreed to hear appeals by two British, two Australian and 12 Kuwaiti nationals. They are among about 660 detainees from more than 40 nations at the base in Cuba following their capture during the war in Afghanistan.

The detainees were seized during the U.S.-led campaign against the Taliban government in Afghanistan and against Osama bin Laden's al Qaeda network after the September 11, 2001, attacks. The first detainees arrived at Guantanamo in January 2002.

Washington considers the detainees enemy combatants, not prisoners of war entitled to specific protections under international law. The United States so far has identified only a handful of detainees to possibly face military tribunals.

Attorneys for the 16 foreign nationals argued that the U.S. Constitution and international law forbade indefinite detention without providing the prisoners certain protections.

Human rights groups welcomed the Supreme Court's decision to hear the appeals.

'HUMAN RIGHTS SCANDAL'

"The treatment of the Guantanamo detainees is a human rights scandal which violates international law and damages U.S. claims to uphold the rule of law," Amnesty International said in a statement.

"We hope that the Supreme Court will bring an end to the legal black hole into which the Guantanamo detainees have been thrown and ensure justice for them and their families," it said.

Elisa Massimino of the Lawyers Committee for Human Rights said, "The justices should use these cases to assert that the Guantanamo detainees have legal rights and a means to seek enforcement of those rights."

A federal judge dismissed the lawsuits on the grounds that the military base was outside U.S. sovereign territory and that writs of habeas corpus were unavailable to foreign nationals outside U.S. territory. A U.S. appeals court agreed.

Michael Ratner, president of the New York-based Center for Constitutional Rights, which represents the British and the Australians, said the case involved an important issue.

"One of the most fundamental democratic principles is at risk in this case: whether the government may detain people without charge and deny them the right to test the legality of their detention in open court," he said.

"The United States has created a prison on Guantanamo Bay that operates entirely outside the law," lawyers for those detainees told the Supreme Court in one appeal.

In the other appeal, for the Kuwaitis, lawyers said the case raised "questions that test the character of our standing in the world community."

A group of former U.S. federal judges, diplomats, military officials and human rights advocates all supported the appeals and urged the Supreme Court to hear the case.

The U.S. Justice Department defended the government's anti-terror policies.

Solicitor General Theodore Olson said the detainees cannot invoke U.S. court jurisdiction to challenge their detention, and he warned of the potential for judicial interference "with the core war powers of the president."


TOPICS: Constitution/Conservatism
KEYWORDS: jurisdiction; supremecourt
Where in the constitution does it say that the Supreme Court gets to decide what its jurisdiction will be? Is it not more dangerous to our freedoms to permit this court to decide whether it has jurisdiction? Isn't this the role of the Congress?
1 posted on 11/10/2003 1:15:13 PM PST by kkindt
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To: kkindt
Where in the constitution does it say that the Supreme Court gets to decide what its jurisdiction will be?

Well, the Bush Administration has declared that it has sole jurisdiction here. I'd rather have this process reviewed by the courts, if anything to shut up the wingnuts. But, as to your question as to who decides jurisdiction, all three branches continually try to declare their jurisdiction - and, if SCOTUS were to over-assert itself, Congress has the last say in the form of impeachment and removal.

2 posted on 11/10/2003 1:18:25 PM PST by dirtboy (New Ben and Jerry's flavor - Howard Dean Swirl - no ice cream, just fruit at bottom)
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To: kkindt
Marbury v. Madison (1803)
"The judicial power of the United States is extended to all cases arising under the Constitution."
"It is emphatically the province and duty of the judicial department to say what the law is."
3 posted on 11/10/2003 1:26:03 PM PST by don'tbedenied
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To: dirtboy
The problem with that is that you need a two thirds majority to convict in an impeachment. That's unlikely given that one party would usually back the court. That means that the court has carte blanc to decide the law is anything it wants. The only effective counterbalance would be for the President to announce that that the court had usurped executive power, and he would ignore the ruling. Then it would be up to the Congress to impeach the president, which would probably fail for the same reason.
4 posted on 11/10/2003 1:29:16 PM PST by Hugin
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To: kkindt
"The U.S. Supreme Court say it will decide whether foreign nationals can use American courts to challenge their incarceration at the U.S. military base in Guantanamo Bay, Cuba, the first cases it will hear on the Bush administration's war on terror."

I have a simple-minded proposal. Instead of having the USSC tied up with issues not directly connected to US citizens (taxpayers), I suggest we, US citizens/taxpayers, demand a full monitary reimbursement from the Justices for resources expended by those who "sit" on any "hearing", should they "decide" they have the authority to take up this flapdoodle.

The International Criminal Court judges want to make themselves useful idiots - why not ship the less-dangerous there one at a time to help "expend" the ICC's funds?

5 posted on 11/10/2003 1:30:07 PM PST by azhenfud ("He who is always looking up seldom finds others' lost change...")
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To: don'tbedenied
Quoting a court decsion on what it's own power is, rather than the constitution, only proves kkindt's point.
6 posted on 11/10/2003 1:31:03 PM PST by Hugin
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To: Hugin
Did you check Article 3, Section 2?

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party
7 posted on 11/10/2003 1:35:36 PM PST by Huck
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To: Hugin
Quoting a court decsion on what it's own power is, rather than the constitution, only proves kkindt's point.

Exactly -- it's a clear case of tautological reasoning.

It's not the USSC that decides, it's the Constitution that decides -- and that is an important distinction. The Executive Branch and the Legislative Branch have powers, including the power to interpret, just as the Judicial Branch does.

BTW, the Constitution says that its rights apply to all persons in the physical confines, the physical jurisdiction, of the US.

Guantanamo is NOT a part of the US. And that's why it was chosen, to cut off the mischief of the ACLU types who want to blur the distinction between accused criminals (who, if citizens, have full constitutional rights until properly convicted) and prisoners of war.

8 posted on 11/10/2003 1:41:21 PM PST by WL-law
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To: Huck
Then there is this part..."In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Congress has the power to bar the court from hearing appeals on the Constitutionality or any particlar law it passes. I wonder what would happen if it used that power?
9 posted on 11/10/2003 1:43:30 PM PST by Hugin
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To: Hugin
"Congress has the power to bar the court from hearing appeals on the Constitutionality or any particlar law it passes. I wonder what would happen if it used that power?"

I would pass out in shock.

10 posted on 11/10/2003 1:45:58 PM PST by azhenfud ("He who is always looking up seldom finds others' lost change...")
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To: don'tbedenied
Here's what the Constitution says...

Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; (See Note 10)--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

So according to the plans of our founders, our representatives have the final say as to the extent of the Court's jurisdiction. They only need to assert themselves.

11 posted on 11/10/2003 1:46:01 PM PST by Sgt_Schultze
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To: Hugin
Congress has the power to bar the court from hearing appeals on the Constitutionality or any particlar law it passes. I wonder what would happen if it used that power?

I believe they have. I think the first Congress passed some judicial acts that are still followed today.

12 posted on 11/10/2003 1:51:45 PM PST by Huck
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To: kkindt
Sorry,supreme court,Cuba is NOT in America!You have NO JURISDICTION!There now,see how easy that decision was and it did'nt take 6 months to reach it.
13 posted on 11/10/2003 1:52:14 PM PST by INSENSITIVE GUY
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To: Hugin
Congress has the power to bar the court from hearing appeals on the Constitutionality or any particlar law it passes. I wonder what would happen if it used that power?

Ex parte Quirin and Korematsu would essentially remain the guiding cases in this area. But that'll never happen in this case, and not in the vast majority of cases - the courts make too convenient of a scapegoat for Congress for them to really start trimming their jurisdiction.

14 posted on 11/10/2003 1:55:54 PM PST by general_re ("I am Torgo. I take care of the place while the Master is away.")
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To: Sgt_Schultze
You wrote: In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

It appears your underlined citation refers only to cases appealed from an inferior court.

15 posted on 11/10/2003 2:04:48 PM PST by Strawberry AZ
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To: kkindt
Oh my.

It just occured to me that this might be a case that O'Connor and Kennedy had in mind in their comments that they would be looking to foreign opinions in their rulings!

We should, of course, be bound by our treaties. But if the Court tries anything tricky on Guantanamo it runs the real risk of treading on the Constitutional foreign policy perogatives of the Senate. We just may see an impeachment in our lifetime if they do.

16 posted on 11/10/2003 2:06:18 PM PST by mrsmith
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To: kkindt
there is another thread running on this.

I predict a flash point here. Bush will lose this case 5-4 (OConnor will flip). He will then have to decide to free the terrorists, or defy the court. This is going to be a mess.
17 posted on 11/10/2003 2:08:01 PM PST by oceanview
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To: mrsmith
yup. the fix is in on this one, its a 5-4 win for the terrorists. the issue will come down to the ability of the court to enforce this order if Bush defies them.
18 posted on 11/10/2003 2:09:25 PM PST by oceanview
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To: oceanview
I'll take that bet. I figure there's about a 75-80% chance the Court will affirm its previous decisions, about a 20-25% chance that it will act very narrowly to slightly restrict the executive's free hand in this area, and about a 0% chance that it will really rewrite previous doctrine and attempt to seriously restrict what the executive can and cannot do.
19 posted on 11/10/2003 2:11:17 PM PST by general_re ("I am Torgo. I take care of the place while the Master is away.")
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To: kkindt
Please use the original title, if possible, when posting articles. It helps prevent duplicates.
20 posted on 11/10/2003 2:16:48 PM PST by Admin Moderator
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To: Strawberry AZ
The whole of clause 2 states:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The portion before the bold refers to the areas where the SC has original jurisdiction. The bold portion refers to the other cases previously mentioned - in Clause 1. The SC can have either original jurisdiction or appelate jurisdiction. Since this area is not mentioned in the area concerning original jurisdiction, it must be covered under the portion relating to appelate jurisdiction.

One would think that the SC cannot just reach out and hear the case without establishing its original jurisdictional claim.

21 posted on 11/10/2003 2:21:48 PM PST by Sgt_Schultze
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To: mrsmith
"We just may see an impeachment in our lifetime if they do. "

Should be: "We just may see an impeachment of a Supreme Court Justice in our lifetime if they do."

The Senate won't let the Supreme Court rewrite treaties- which IMO they would have to do to have jurisdiction. Heck, I think most of the Justices are aware of that.
Congress has written no law to give unlawful combatants any standing.

22 posted on 11/10/2003 2:25:24 PM PST by mrsmith
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To: oceanview
WHat could happen - and the best scenario - is that the 5-4 court rules against Bush - then Bush appeals to the Senate to pass by majority vote that the Supreme Court DOES NOT have jurisdiction per this particular article in the Constitution and then set the precedent that the COngrees NOT The Supreme Court determines what jurisdiction it really has - this would be a great thing to happen and slap down the liberal court where it belongs.
23 posted on 11/11/2003 8:46:58 AM PST by kkindt (knightforhire.com)
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To: kkindt
Very simple. The detainees never touched U.S. Soil, so they do not get to use our U.S. Courts.

Refer to : The Supreme Court Ruling in 1950's Johnson vs. Eisentrager. 21 prisoners requested habeas corpus. They got denied. The U.S. courts had no jurisdiction. Even thought the federal courts appealed the Supreme Courts reversed the appeals "the privilege of litigation" did not extend to the 21 Germans, who had never been held on U.S. soil.

Sorry Supreme Court, you better talk to the United Nations in order to get jurisdiction.

Alternative, trial the detainees in the ICC.
24 posted on 01/06/2004 2:31:34 AM PST by Kafeen
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