- The Washington Times - Wednesday, January 28, 2004


The Supreme Court stepped in yesterday to allow the continued isolation of terrorism suspects at a Navy base in Cuba.

Justice Sandra Day O’Connor granted a request from the Bush administration to stop a lower court from communicating with a detainee at Guantanamo Bay.

The 9th U.S. Circuit Court of Appeals had planned to notify the detainee of that court’s ruling in December that Guantanamo prisoners should be allowed to see attorneys and have access to courts.

Justice O’Connor granted the government’s request to put that ruling on hold, but she said the high court could reconsider after it hears from attorneys for the detainee, Falen Gherebi.

Justice O’Connor has jurisdiction over appeals from the San Francisco-based 9th Circuit.

Solicitor General Theodore Olson had asked the high court earlier yesterday to block any developments in a class-action case over treatment of the Guantanamo detainees until the Supreme Court decides this year, in a separate case, whether Guantanamo detainees may contest their captivity in American courts.

The government has been holding about 650 men, mostly Muslims, essentially incommunicado at the prison in Cuba.

The military maintains that because the men were arrested overseas on suspicion of terrorism, they may be detained indefinitely without charges or trial.

The Supreme Court announced in November that it would consider appeals on behalf of Guantanamo inmates. A month later, a panel of the 9th Circuit issued the ruling in favor of Gherebi, a Libyan captured in Afghanistan.

National security is at stake, Mr. Olson argued in his emergency filing, because communication with the prisoner would “interfere with the military’s efforts to obtain intelligence from Gherebi and other Guantanamo detainees related to the ongoing war against terrorism.”

Mark Drumbl, a law professor at Washington & Lee University, said the argument is weak, given the passage of time.

“This has been going on for 21/2 years. Any information they had might be fairly stale now,” he said.

He said the government has a legitimate claim about overlapping issues between the case in San Francisco and the pending appeal at the high court.

Mr. Olson said the appeals court refused last week to stop proceedings in the case, which the administration is appealing to the Supreme Court.

In addition to the Guantanamo case — Bush v. Gherebi, A-637 — the Supreme Court is considering a case testing the legal rights of American citizens caught overseas in the war on terrorism and also may hear an appeal involving the rights of a U.S. terror suspect caught in the United States.

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