[NYTr] Gitmo Gulag legal showdown begins

[All the News That Doesn't Fit]

BBC - Dec 5, 2007
http://news.bbc.co.uk/2/hi/americas/7128523.stm

Guantanamo legal showdown begins

The US Supreme Court has begun considering whether Guantanamo Bay
inmates should be able to contest their detention in US civilian courts.

Two cases challenge the removal by Congress of the "habeas corpus"
right of detainees under the US constitution to be heard by an
independent judge.

If the court rules in their favour, indefinite detention under military
control could be declared unlawful.

The court's judges have ruled against the US government in two earlier
cases.

he first concerned the status of Guantanamo Bay in relation to US
territory.

In 2004, the judges found that existing law gave federal courts the
right to consider challenges to the legality of the detention of
foreign nationals held at Guantanamo Bay - the right of "habeas corpus"
- because of the unique control the US government had over the land
leased from Cuba.

Two years later, it ruled that the president did not have the authority
to order the "enemy combatants" there to face military commissions.

The government responded both times by obtaining congressional
legislation restricting judicial review of the detentions.

The Military Commissions Act (MCA) passed in 2006 removed the right of
habeas corpus and set up commissions to try detainees who were not US
citizens.

'Law-free zone'

Now the two test cases challenging the MCA brought by Lakhdar
Boumediene, an Algerian arrested in Bosnia in 2001, and Fawzi al-Odah,
a Kuwaiti seized in Pakistan in 2002, have been consolidated into one
and brought on behalf of 37 foreign nationals who remain among the 305
detainees at Guantanamo Bay. 

Their lawyers argue that habeas corpus should extend to the facility
even though it is technically not US sovereign territory.

On Wednesday, court justices questioned lawyers from both sides.

Seth Waxman, lawyer for one of the inmates, said many prisoners had
been held for six years with "no prospect" of challenging their
detention in any meaningful way.

"The US government has complete jurisdiction and control over this
place. No other law applies," Mr Waxman said.

"If the US law doesn't apply, it is a law-free zone." 

But Solicitor General Paul Clement said the prisoners at Guantanamo
have more rights to contest their detention than foreigners held by the
US outside its territory have had in the past.

"This is a remarkable liberalisation," he said.

The US constitution states that habeas corpus "shall not be suspended,
unless when in cases of rebellion or invasion the public safety may
require it".

Mr Clement said in his brief to the court that the US does not own
Guantanamo Bay and therefore the writ of habeas corpus does not run
there.

"As aliens held outside the sovereign territory of the United States,
petitioners do not enjoy any rights," he said.

Outside Wednesday's hearing two dozen protesters, some in orange jump
suits, shouted "restore habeas corpus", the Associated Press news
agency reported.

The court is expected to decide the case by mid-2008.