Filed at 11:02 a.m. ET
WASHINGTON (AP) -- The United States has created a ``lawless enclave'' at
a military base in Cuba where more than 600 men from 44 countries are being
held without access to American courts, a lawyer for the men told the
Supreme Court on Tuesday.
Attorney John Gibbons said ``it's been plain for 215 years'' that people
in federal detention may file petitions in U.S. courts.
The prisoners in Guantanamo Bay, Cuba, were mostly picked up in the
fighting that toppled the Taliban government in Afghanistan and Pakistan in
the months following the Sept. 11 attacks.
Their appeal, the first major challenge arising from the U.S. war on
terror to reach the high court, asks a basic legal question: Can
foreign-born prisoners picked up overseas and held outside U.S. borders use
American courts to try win their freedom?
Chief Justice William H. Rehnquist noted that the detainees are not on
American soil, and asked how a judge in Washington is to deal with a case
from Cuba.
Gibbons said the men should be treated just as prisoners in America are.
``No other law applies there. Cuban law doesn't apply there,'' he said.
Justice Antonin Scalia said that if the courts are opened to cases from
foreign combatants, battlefield detainees would try to use American courts.
In addition to that jurisdictional issue, the court next week takes up
two related cases about the rights of American citizens labeled enemy
combatants and held under similar restrictions.
The most important theme in all the cases is the power of the president
to conduct a new kind of war as he sees fit.
Some spectators for Tuesday's argument camped out overnight, and a line
of several hundred people snaked around the building.
``It's not acceptable to detain people without recourse. I think they
should have at least a fair hearing to prove their innocence, if they are
innocent,'' said Justin Briggs, 25, of Gaithersburg, Md. ``It damages the
credibility of the U.S. throughout the world.''
In the Guantanamo case, the Bush administration's top Supreme Court
lawyer argued in court filings that allowing the prisoners to go to court
would ``place the federal courts in the unprecedented position of
micromanaging the executive's handling of captured enemy combatants from a
distant zone.''
The Bush administration asserts the right to hold and interrogate the men
as long as necessary, without formal charges or the guarantee of a trial or
access to a lawyer. The administration also asserts the men are not
traditional prisoners of war, who would have guaranteed rights under the
Geneva Convention.
The lawsuit before the high court was brought by lawyers who had not met
their clients. Since then, a few Guantanamo detainees have been granted
access to attorneys.
The lawyers say the men are in a nightmarish legal limbo. Furthermore,
they say their clients had nothing to do with Sept. 11 and have never harmed
Americans.
``They maintain today, as they have throughout this litigation, that they
are innocent of wrongdoing, and the United States has never presented
evidence to the contrary,'' lawyers for British and Australian citizens
argued in a court filing.
Organizations and individuals as varied as British members of Parliament,
retired military officers and former American diplomats support the
prisoners.
``History teaches that we tend to sacrifice civil liberties too quickly
based on claims of military necessity and national security, only to
discover later that those claims were overstated from the start,'' a
friend-of-the-court filing from former Japanese-American internee Fred
Korematsu said.
It was Korematsu's challenge to the World War II internment camps for
Japanese-Americans that led the Supreme Court to uphold that wartime
detention in 1944.
Arrayed on the other side are former U.S. attorneys general, other former
military officers and Medal of Honor winners, and conservative legal
scholars and lawyers, including failed Supreme Court nominee Robert Bork, a
former federal appeals court judge.
``If the court, for the first time in history, interposes the federal
judiciary between our armed forces and enemy belligerents held abroad, the
court will effect a dangerous and unprecedented revolution in the separation
of powers and undermine the ability of the U.S. military to protect our
citizens from attack,'' the Bork group wrote in a friend-of-the-court
filing.
The cases are Rasul v. Bush, 03-334, and al-Odah v. United States,
03-343.