- The Washington Times - Monday, November 10, 2003

The Supreme Court yesterday agreed to consider whether 16 detainees at the U.S. naval base at Guantanamo Bay, Cuba, have access to U.S. courts to challenge their imprisonment without formal charges.

The two British citizens, two Australians and 12 Kuwaitis are among 600 suspected Taliban and al Qaeda members from 40 nations being held in the wake of the Afghanistan war. They have not been given access to attorneys or to their families.

A federal judge dismissed lawsuits in the case, saying the detainees could not pursue the matter in U.S. courts because the military base was outside the nation’s sovereign territory. The U.S. Circuit Court of Appeals for the District of Columbia agreed in March, saying Cuba and not the United States had sovereignty over Guantanamo Bay.

It will be the first Supreme Court test of President Bush’s war on terrorism.

Oral arguments will be heard this spring. A final ruling, which could set precedent for the judiciary’s role in reviewing government actions during the war, is expected by July. The Supreme Court combined the lawsuits into a single appeal for the spring hearing.

The Bush administration issued no immediate comment.

The American Center for Law and Justice said it will file a friend of the court, or amicus, brief supporting the government, saying the “United States is permitted to take action to protect the safety and security of all Americans.”

In its written order, the Supreme Court said it 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 detainees, seized after the September 11 attacks, are considered enemy combatants, not prisoners of war who would be entitled to protection under international law.

Attorneys for the detainees, who filed lawsuits on behalf of the New York-based Center for Constitutional Rights (CCR), said international law and the U.S. Constitution do not allow indefinite detention without providing those detained with basic protections. They also said their clients “are not, and have never been, members of Al Qaeda or any other terrorist group.”

The CCR attorneys asked the justices Sept. 1 to review the appeals court decision in cases involving British citizens Shafig Rasul and Asif Iqbal and Australian David Hicks, detained since January 2002. They said the men had not been permitted to talk with counsel and were unaware of the lawsuits.

Several retired military officers who also asked the court to review the cases said they were pleased by the ruling.

“The United States is presented with a wonderful opportunity to demonstrate to both our allies and our enemies what the rule of law really means,” retired Rear Adm. John D. Hutson said. “We dare not fail. This is too important.”

In their brief, the officers said the United States was violating its own military regulations and the Geneva Convention by not holding hearings to determine the prisoners’ status. They said that decision put U.S. military prisoners at greater risk in future conflicts.

The decision was hailed by several civil rights organizations, including Amnesty International, which described treatment of the Guantanamo detainees as “a human rights scandal.”

Solicitor General Theodore B. Olson, whose wife, Barbara, was killed in the September 11 attacks, had urged the high court not to hear the case. He said the appeals court properly determined that “aliens detained by the military abroad” have only those rights “determined by the executive and the military, and not the courts.”

In other action, the high court declined without comment to hear an appeal from the Illinois-based Global Relief Foundation, an Islamic charity whose assets were frozen after September 11. The charity, the second-largest Islamic relief group in the United States, has been linked to al Qaeda.

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