Global Policy Forum

By Jim Lobe

After two years of litigation, the U.S. Supreme Court is finally set to decide whether the executive branch of the U.S. government may detain alleged "enemy combatants" indefinitely without any judicial review of their status

Three cases -- one of them argued before the nation's highest court last week and the other two due to be presented here Wednesday -- will determine the extent of U.S. presidential power to detain both U.S. citizens and foreign nationals in the "war on terrorism".

Dozens of independent groups -- including human rights and relief organisations, former prisoners-of-war and legal associations -- have filed "friend of the court" briefs, most of them opposed to the government's position.

While the nine-judge court will not issue its ruling until later this spring, civil-liberties advocates are hopeful that a majority of justices will insist that the executive branch cannot prevent detainees from gaining access to federal courts to determine whether the government has sufficient grounds for their detention.

"It seems four of the justices are strongly on the side of detainees (held) at the U.S.' Guantanamo (Bay naval base in Cuba) on the question of whether U.S. courts have jurisdiction", according to Deborah Pearlstein, director of the U.S. law and security programme at Human Rights First (HRF), formerly known as the Lawyers Committee for Human Rights.

Reflecting on the oral arguments before the Court last week, she added that two other justices -- Sandra Day O'Connor and Anthony Kennedy -- also indicated scepticism about the case put forward by Bush administration Solicitor-General Ted Olson, that the executive branch's powers to detain "enemy combatants" should be virtually unlimited during war.

"(They) will be swing votes", Pearlstein said of the two justices who were appointed by former Republican presidents Richard Nixon and Ronald Reagan, respectively. The three cases, which are being closely watched by human rights activists and foreign ministries around the world, are the first of a slew of hearings concerning the fate of "enemy combatants" held by the Pentagon in its "war on terror" and pending trials before specially created military commissions whose proposed procedures have been widely criticised for failing to meet international standards of due process.

Some 700 suspected operatives of the al-Qaeda terrorist group or the former governing Taliban regime in Afghanistan have been held at Guantanamo Bay since their capture during and after the U.S.-led military campaign in Afghanistan in late 2001. About 100 of them, including some deemed harmless, have been returned to their home countries, leaving 595 from more than 40 countries still in custody.

Quoting a senior Pentagon official, the 'Boston Globe' reported Sunday that the administration lacks sufficient evidence on most of the detainees to try them before a military commission but that they are considered too dangerous or too valuable as possible intelligence assets to be released within the foreseeable future.

Last week's cases were brought on behalf of 16 Guantanamo detainees who contend that they were innocent combatants picked up or delivered to U.S. military authorities in Afghanistan or Pakistan by mistake. Under the Geneva Conventions, prisoners of war (POWs) are entitled to appeal their status to an independent tribunal, but, in a highly controversial decision, the Bush administration decided in early 2002 that the Guantanamo detainees were not entitled to POW status. As a result, lawyers acting on behalf of the 16 -- two of whom have since been returned to Britain -- filed habeas corpus petitions.

Citing a precedent that resulted in the imprisonment and execution of German saboteurs during the Second World War, Olson argued that federal courts lacked jurisdiction over detainees held at the Guantanamo base because it is not on U.S. territory.

He also argued that the executive branch enjoys much greater detention powers during a time of war, and warned that any judicial review "would place the federal courts in the unprecedented position of micro-managing the executive's handling of captured enemy combatants from a distant combat zone" in violation of the constitutional "separation of powers" doctrine that allocates responsibilities to each branch of government.

But Olson's argument provoked a battery of questions from six of the justices, including O'Connor and Kennedy, about whether detainees could be placed in a "no law" zone without recourse to any judicial authority and where they were effectively deprived of all basic rights. Olson might have an even more difficult time in Wednesday's cases, which both involve U.S. citizens who have been held for two years without charge at a U.S. Navy brig in South Carolina. As "enemy combatants" -- a phrase that has no legal precedent -- both were denied the right to consult with a lawyer until quite recently or to contest their detentions in court.

Yaser Hamdi, who was captured by the Northern Alliance in Afghanistan before being transferred to Washington's custody, acquired U.S. citizenship by being born in the United States to Saudi parents, who then returned to their homeland.

An appeals court in Virginia held last year that Hamdi could continue to be held after the Pentagon submitted a nine-paragraph affidavit asserting that he had been captured while fighting for the Taliban. Whether that document constituted adequate grounds for his indefinite detention without charge or whether Hamdi should be granted the right to rebut the government's affidavit in court will be the focus of argument Wednesday.

The companion case of Jose Padilla, who was arrested at Chicago's main airport two years ago on suspicion of plotting with al-Qaeda to detonate a radioactive device, might be even more difficult for the administration to win, according to civil liberties experts, if only because he was detained so far from the actual battleground.

In that case, an appeals court in New York ruled Padilla should be granted the chance to rebut the government's case, which is based on confidential sources, and that, absent a law approved by Congress authorising such a detention, the president has no authority to act on his own.

In all three cases, the administration argues that the determination of enemy combatant status is a "quintessentially military judgement, representing a core exercise of the commander-in-chief authority" that should not be reviewed by the courts.

"Not since the internment of Japanese American citizens during World War II have we seen such a far-reaching assertion of presidential power", said Ralph Neas, president of the civil-libertarian People for the American Way Foundation, which has filed a joint amicus brief with the right-wing Rutherford Foundation. While many experts believe that the fact that Hamdi and Padilla are citizens make it more probable they will prevail in their cases before the Court, some predict the majority of justices will not make such a distinction.

"The (U.S. Constitution's) Bill of Rights ... does not distinguish between citizens and non-citizens", according to David Cole, who teaches law at Georgetown University here. "It extends its protections in universal language, to 'persons', 'people' or 'the accused'. The framers considered these rights to be God-given natural rights, and God didn't give them only to persons holding American passports."