Court Hears Test of How Detainees Handled

WASHINGTON (AP) - The government can't throw out prisoners' constitutional rights to make their case in court just because the country faces new threats in the war on terrorism, a lawyer for foreign-born detainees argued Tuesday in the Supreme Court's first case arising from the Sept. 11 attacks.

"It's been plain for 215 years," lawyer John Gibbons argued. The government, he said, cannot create a "lawless enclave" where no court, American or otherwise, can check up on things.

"The United States is at war," responded Theodore Olson, the Bush administration's top Supreme Court lawyer.

Foreigners held at the Navy's prison camp at Guantanamo Bay, Cuba, want the Supreme Court to give them a legal right "that is not authorized by Congress, does not arise from the Constitution, has never been exercised by this court," said Olson, himself a symbol of the cost of terrorism.

Olson's wife, Barbara, was killed aboard the jet that slammed into the Pentagon in September 2001. She called him on her cell phone minutes before the crash, and reported the plane had been hijacked.

The justices seemed deeply divided over the fate of more than 600 men from 44 countries who have been held for more than two years at the Guantanamo camp, and about the underlying questions concerning presidential powers in wartime.

"I'm still honestly most worried about the fact that there would be a large category of unchecked and uncheckable actions dealing with the detention of individuals that are being held in a place where America has the power to do everything," said Justice Stephen Breyer.

Two and a half years after Sept. 11, the high court is starting small, with a simple question about whether federal judges can even hear the complaints of the Guantanamo prisoners.

Next week, the court takes up two related cases that may hit closer to home for many Americans. Those cases test President Bush's power to detain U.S. citizens for long periods without charges, and with virtually no access to the outside world.

The terrorism cases before the Supreme Court this year will draw some boundaries for White House and military authority in a war without defined opponents or a clear end.

The Kuwaiti, British and Australian prisoners at issue in Tuesday's case were swept up by U.S. forces during fighting in Afghanistan and Pakistan in the weeks after the jetliner attacks that killed thousands in New York, Virginia and Pennsylvania.

The Supreme Court's answer, due by late June, will not settle whether the men are dangerous terrorists or, as their lawyers contend, innocent victims of circumstance.

The administration claims exclusive power to hold the men and interrogate them as long as necessary, with no guarantee of a lawyer or a trial to determine their guilt. Judges have no business second-guessing the detention of foreigners held on foreign soil, Olson told the court.

The Bush administration calls the men "enemy combatants," similar to traditional prisoners of war but outside the guarantees of the Geneva Convention. The administration has recently assigned lawyers to represent some Guantanamo prisoners, and is making plans to hold the first military tribunals since World War II at the base.

Justice Anthony M. Kennedy, a centrist whose vote may be pivotal, appeared skeptical at times that the government could simply declare the courthouse door closed to the prisoners.

True, the men are not U.S. citizens with clear rights to petition their government, Kennedy said, but the law "doesn't talk about citizens. It says prisoners held under the authority of the United States."

On the other side, Chief Justice William H. Rehnquist and Justice Antonin Scalia seemed convinced that federal courts cannot referee every complaint from foreigners held abroad.

The Supreme Court is also no place to write some detailed new rulebook for the government to follow, Scalia said. He was speaking to Olson, but his real audience was Breyer, seated at the opposite end of the bench.

"We have only lawyers before us," Scalia said. "We have no witnesses. We have no cross examination. We have no investigative staff."

Central to the case is the reality of U.S. control in Guantanamo. Leased from Cuba since 1903, the base is independent of the communist country that surrounds it. As a legal matter, however, the Supreme Court must decide whether Cuba's technical sovereignty over the land means the United States courts are off-limits to prisoners.

American courts must have jurisdiction, because only American law and American authority govern what happens at Guantanamo, Gibbons argued.

"Cuban law has never had any application inside that base. A stamp with Fidel Castro's picture on it wouldn't get a letter off the base."

The nation is at war.

I believe the Bush Administration is making an error in even pleading this case before the Court.

Bush should make a statement to the Court to the effect that the conduct of war, including the disposition of enemy combatants, is Constitutionally a power granted exclusively to the President. By interfering with the President's authority to wage war, the Court is violating the Separation of Powers concept enshrined in the Constitution and years of history. Ergo, the Court has no jurisdiction here, the President will not plead, and any decisions rendered on this subject by the Court are null and void.

By pleading the State's case before the Court here, the Administration is recognizing the authority of the Courts to intervene in matters involving war. A precedent is being set which will empower attorneys to bring a host of litigation against the Federal Government involving the conduct of military matters. We will see cases involving relatives of dead or injured soldiers and alleged government negligence in conducting the war, cases by relatives of dead non-combatants, cases brought by pacifist groups, litigation against military equipment manufcaturers, the military for inadequate training, etc., etc. The potential for unscrupulous attorneys reaping a fortune in publicity or money here in boundless. In short, it sets a precedent for tying up any war effort in litigation. No military action can be conducted under the kind of irresponsible scrutiny the legal establishemnt and activist courts in this country have demonstrated themselves capable of.

We have two arguments and sources governing this question. Our Constitution and the Geneva Convention. Our Constitution is overridden by the Geneva Convention in matters involving foreign wars. Prisoners of war are to be held until hostilities are ended. Have hostilities ended, that is the question? I would assume that as long as the Taliban and Al Qaeda factions are still roaming around in Afghanistan, hostilities are ongoing.

There is a downside to holding prisoners indefinitely. Any American prisoner can be held indefinitely subject to the same rules we have in force. As far as American citizens, they should receive the same protection under our Constitution as any other citizen. If captured in a foreign war such as Lindh, a summsry couft martial and execution is allowable. If captured within the United States or returned to the United States, they deserve a speedy trial as any other citizen.

The humility of the supreme Court will be sorely tested by this case:

KOKI HIROTA V. GENERAL OF THE ARMY MACARTHUR , 338 U.S. 197 (1948)
Justice Douglas: "...If an American General holds a prisoner, our process can reach him wherever he is. To that extent at least the Constitution follows the flag. .. He is an American citizen who is performing functions for our government. It is our Constitution which he supports and defends... if as a result of unlawful action, one of our Generals holds a prisoner in his custody, the writ of habeas corpus can effect a release from that custody. It is the historic function of the writ to examine into the cause of restraint of liberty."

I hope their hubris is overcome by respect for their Constitutional limits.

1948 was, fortunately, AFTER WW2. And we ALL know what kind of idiot Justice Douglass was.

Even the Courts must follow the Constitution. If they violate it, then the Executive has the responsibility and authority to ignore them, as President Andrew Jackson did, or even threaten to pack the court with additonal justices, as FDR did.

Activist, legislative decisions and decisions which otherwise violate the spearation of poers should be ignored as null and void by the Executive and the Legislature.

The Founding Fathers never intended one branch of the government to be superior to any other. They are equal when operating in their legitimate spheres of influence.

Bader-Ginsberg, Stevens, Souter, Breyer, O'Conner and Kennedy will ALL vote against the Administration on this issue. Neither of the aforementioned are qualified to sit on the Supreme Court and all of them should be impeached. They are all activist judges who serve a predetermined political agenda and even feel our courts should defer to foreign law in rendering decisions.

"We have two arguments and sources governing this question. Our Constitution and the Geneva Convention."

I don't believe our Supreme Court has been authorized to enforce the Geneva Convention.

"Prisoners of war are to be held until hostilities are ended. Have hostilities ended, that is the question? I would assume that as long as the Taliban and Al Qaeda factions are still roaming around in Afghanistan, hostilities are ongoing."

Hostilities in the War against Terrorism will not end in our lifetime. They certainly are still ongoing.

"There is a downside to holding prisoners indefinitely. Any American prisoner can be held indefinitely subject to the same rules we have in force."

None of the prisoners at Guantanamo are American citizens.

"The Supreme court has jurisdiction over treaties that the United States ratifies."

The President has jurisdiction over the conduct of war, not the Courts and the civilian legal establishment. If the reverse were the case, we would still be fighting WW2. Such an arrangement is illogical and patently unworkable.

"We have an American that is a prisoner in Iraq."

An American who captured in arms fighting against America on the side of its enemies, or an American captured by the Iraqi insurgents?

"Did you approve of the Vietnamese never retutning our prisoners after the war?"

Neither the Vietnamese, the Soviets, the North Koreans nor the Red Chinese ever returned all captured prisoners after their wars. The disposition of all prisoners of war should be determined at the time a peace or armistice is concluded. Presumably they should all should be repatriated.

The War on Terror is a unique situation. We are battling a loosely organized group and/or independent groups of terrorists, some or possibly all of whom are supported to some degree by hostile countries with whom we may engage in active hostilties in the future. This is a world wide war waged by religious fanatics. Our enemies are really international criminals, supported by rogue states, the magnitude of whose operations requires military, not civilian action.

Technically, I think the U.S. would be justified in keeping the prisoners at Guantanamo captive until all cessation of hostilities, an event unlikely to occur in the forseeable future due to the unique nature of the conflict. In any case, I believe the U.S. military, under the guidance of the President, is the best judge as to the disposition of these captives, not a civilian legal system which is contorted by courtroom technicalities which make it poorly capable of handling even the civilian cases which come before it.

If a murderer or rapist is released on a judicial technicality, and commits the same crime again, the impact is far less than if one of these Guantanamo captives is released by a U.S. civilian court and winds up piloting another kamikaze attack on a major U.S. civilian center.
In any case, I still maintain that the disposition and treatment of combatants seized in warfare against U.S. military forces or captured in anti-terrorist operations is Constitutionally the responsibility of the President of the U.S. and not the Civil Court System.

The closest analogy I can find historically to this situation was the military actions against the Tripolitanian pirates, which, not coincidentally, also involved Islamic belligerants. Perhaps the Military should really treat these people like international pirates and set up something similar to the British Admiralty courts to handle them. But under no circumstances should the fatuous and unrealistic justices on the Supreme Court become involved in any way with a major U.S. military action like this one.

So far we have 3,000 dead American civilians and numerous dead American military personnel and not one single enemy terrorist involved has been executed. I find this most remarkable.

What authority do you have for making the statement that the President has authority over the Supreme Court? There does happen to be a separation of powers in the US Constitution giving equal power to the three branches of government. I would hope that we have not reached the level where our leaders are exercising supreme power. The war is not being conducted in Guantanamo. Cpl. Maupin has been on TV in a video as a prisoner in Iraq. Are you supporting him by hoping he remains a prisoner until the war on terror is over. You can't have it both ways. The obvious answer is that Maupin is a prisoner of insurgents in Iraq. Are the prisoners insurgents in Guantanamo? I am not concerned about the release of prisoners in Guantanamo.

I do think that common sense would eventually determine that something has to be done with them. The objection I can see violating our Constitution in the case of Lindh and the other arrested in Chicago. He is an American citizen held incommunicado in a navy brig in North Carolina without any representation or communication with his family members. Our judicial system is not so overcrowded that they cannot honor their duty even if they have to sentence him to death for treason. I get very nervous when our present system disregards the Constitution for this leads us ever closer to tyranny. It is in our own interest to see that legal norms are followed, we don't want to see extralegal means used to become a copycat of the Third Reich.

"What authority do you have for making the statement that the President has authority over the Supreme Court?"

I believe the conduct of war is Constitutionally vested in the President, not the Courts.

Article III, Section 7 states, "The President shall be commander in chief of the army and navy of the United States, and of the militia of the several States, when called into actual service of the United States..."

Article I, Section VIII, POWERS OF CONGRESS states "Congress shall have power: ....10. To define and punish piracies and felonies committed on the high seas, and offenses against the laws of nations; 11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;..."

It appears to me that the President and Congress and not the Supreme Court, have jurisdiction in waging war.

"I would hope that we have not reached the level where our leaders are exercising supreme power."

We are at war. The Constitution grants the President Supreme Authority over the military. You can't conduct a war by committee.

"The war is not being conducted in Guantanamo."

No, but the disposition of the prisoners there can certainly impact the outcome of the war we are fighting and threaten the lives of American civlians and military personnel.

"Cpl. Maupin has been on TV in a video as a prisoner in Iraq. Are you supporting him by hoping he remains a prisoner until the war on terror is over."

The U.S. should do everything it can to try and rescue Cpl Maupin. But we should not exchange prisoners with terrorists. To do so would be to encourage them to attempt this in the future with others, both civilian sn military. I believe General Grant refused to exchange legitimate prisoners of war with the South. The thugs holding Cpl Maupin are not legitimate soldiers, they are terrorists.

"The obvious answer is that Maupin is a prisoner of insurgents in Iraq."

I would term them "thugs" rather than insurgents. They represent no legitimate or even illegitimate authority with which we can negotiate in good conscience. Their airing of Cpl Maupin on T.V. itself is a violation of the Geneva Agreement. They are behaving like kidnappers, not soldiers.

"Are the prisoners insurgents in Guantanamo? "

The prisoners in Guantanamo were captured in a military operation which was a part of the ongoing war against terrorists. They are enemy combatants but hardly prisoners of war in the sense that term is usually understood.

The issue of American citizens taken in arms against fellow Americans should be settled by trial. If they are guilty of such actions, they are traitors as defined in Article III, Section III, paragraph 1 and should pay the price of treason - death. I think this is a separate issue from that of pirates, enemy combatants, whatever they are termed, taken captive by American military forces in action.

I don't want to see a military dictatorship here either. We certainly should be alert to any possible violations of legitimate rights by the state. However, I believe that there is, at times, some leeway on certain points and I feel the gravity of the danger threatening us is even greater than the one we faced during the cold war. The people opposing us are fanatics who are very willing to kill themselves, us, and any innocent third parties which stand in the way of their objective which is to destroy western civlization and democracy and Islamicize the world along Wahhabist lines. Even the Communists at their very worst had no death wish for themselves and no desire to die in order to achieve their objectives. These people, like kamikaze pilots, are.

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