ASHINGTON,
April 20 — The Supreme Court appeared distinctly unreceptive Tuesday to the
Bush administration's argument that the federal courthouse doors must remain
closed to the foreign detainees at the Guantánamo Bay naval base in Cuba.
In the first of three cases this month on the right to judicial review of
those deemed enemy combatants, most justices seemed to regard the World War
II-era precedent that is the cornerstone of the administration's strategy as
ambiguous, irrelevant or even counter to the administration's position.
Even Solicitor General Theodore B. Olson's opening declaration, "The
United States is at war," appeared to rankle rather than persuade the
skeptical justices.
"Supposing the war had ended," Justice John Paul Stevens asked Mr. Olson.
"Could you continue to detain these people in Guantánamo, and would there
then be jurisdiction?"
Mr. Olson replied, "We believe that there would not be jurisdiction."
Justice Stevens then asked, "So the existence of the war is really
irrelevant to the legal issue, is it not?"
True, Mr. Olson acknowledged, the government's position did not depend on
the continued military conflict in Afghanistan. "But it's even more forceful
and compelling" in that context, he said.
In addition to Justice Stevens, Justices Ruth Bader Ginsburg, David H.
Souter, Stephen G. Breyer and Sandra Day O'Connor also appeared unpersuaded
by the administration's arguments.
At issue was whether the Guantánamo detainees, some 600 men of varying
nationalities seized in Afghanistan and Pakistan during operations against
the Taliban, can have access to federal court to contest their detention
through petitions for habeas corpus, the ancient writ by which prisoners in
the English-speaking world have for centuries been able to challenge the
legality of their confinement.
The federal appeals court here ruled last year that the federal courts
lack jurisdiction to consider habeas corpus petitions from the detainees at
Guantánamo. The two cases the Supreme Court combined for the argument on
Tuesday were brought on behalf of 16 detainees, who all maintain that they
were innocent noncombatants, some mistakenly picked up by bounty hunters,
when they were seized.
While hearing the case on behalf of noncitizens, the justices and most
others in the crowded courtroom — some of whom had waited in line since 11
p.m. Monday — also no doubt had in mind the next round in the court's review
of the administration's pursuit of its war on terrorism.
Two cases to be argued next Wednesday test the rights of United States
citizens, Yaser Esam Hamdi and Jose Padilla, held for two years in military
custody on suspicion of collaborating with Al Qaeda but never officially
charged or given the opportunity to contest the basis for being designated
enemy combatants.
Arriving at the court two and a half years after the Sept. 11 attacks,
the three cases present the Supreme Court with a long-anticipated
opportunity to examine not only the balance between civil liberties and
national security, but between the executive branch and the judiciary as
well. Framed as questions of federal court jurisdiction, the cases bring
central questions of judicial authority to a court that has been notably
jealous of its own prerogatives.
John J. Gibbons, a retired federal judge who argued on behalf of the
detainees, emphasized that strand of his argument in his opening words.
"What's at stake in this case is the authority of the federal courts to
uphold the rule of law," he said.
His argument was not particularly eloquent, but the fact that he was
making it lent an air of authority to the detainees' cause. Mr. Gibbons, 79,
was named to the federal appeals court in Philadelphia by President Richard
M. Nixon. He served as chief judge before retiring in 1990 to join a major
law firm in Newark.
As a young Navy officer, Mr. Gibbons spent a year at Guantánamo Bay. One
major issue in the case, Rasul v. Bush, No. 03-334, is how to characterize
the United States role in that Cuban outpost, which it has occupied since
1903 under a perpetual lease that gives it "complete jurisdiction and
control" while preserving Cuba's "ultimate sovereignty."
While the correct interpretation was the subject of vigorous debate on
Tuesday, the Supreme Court precedent at the core of the legal argument, a
decision from 1950 called Johnson v. Eisentrager, indicated that noncitizen
enemy combatants held outside the United States have no right to habeas
corpus. So it was important for the detainees to try to show that Guantánamo
Bay should be considered functionally, if not formally, part of the United
States.
"Guantánamo Navy Base, as I can attest from a year of personal
experience, is under complete United States control and has been for a
century," Mr. Gibbons said.
Justice Ginsburg said with a smile: "We don't need your personal
experience. That's what it says in the treaty. It says `complete
jurisdiction, complete jurisdiction and control.' "
Chief Justice William H. Rehnquist objected: "It also says Cuba retains
sovereignty."
Mr. Gibbons replied: "Cuban law has never had any application inside that
base. A stamp with Fidel Castro's picture on it wouldn't get a letter off
the base."
He added: "It's so totally artificial to say that because of this
provision in the lease, the executive branch can create a `no law' zone
where it is not accountable to any judiciary anywhere."
The Johnson v. Eisentrager precedent also figured heavily in the argument
made by Mr. Olson, whose wife, Barbara, died in the Sept. 11 attacks. He
contended that the case, which rejected habeas corpus petitions from 21
German civilians who had been caught spying for Japan in wartime China,
established a rule barring the federal courts from even considering
petitions from enemy aliens being held overseas.
The Guantánamo detainees' lawyers, however, argue that the decision
indicates the court did exercise jurisdiction and then rejected the
petitions on their merits, at least in part because the Germans had already
been tried and found guilty by a military commission. If that interpretation
is accepted, then there is no binding Supreme Court precedent that bars
jurisdiction in the Guantánamo case for petitioners who have been neither
charged nor tried.
Justice O'Connor, whose vote is likely to be crucial, appeared to accept
that view. "What it seemed to do was to reach the merits and say at the end
of the day, these people have no rights," Justice O'Connor said of the
Eisentrager ruling. "They've had a trial under the military tribunal and
they have no rights that could be granted," she added.
A Supreme Court decision finding jurisdiction to hear the Guantánamo
detainees' habeas corpus petitions would raise — but almost certainly leave
to the lower courts to answer — the further question of whether those
petitions should be granted.
Justice Breyer suggested that the court could adopt a "protective but
practical" standard for evaluating the merits of the petitions.
As he told Mr. Olson, Justice Breyer said: "If we go with you, it has the
virtue of clarity. There is a clear rule. Not a citizen, outside the United
States, we don't get your foot in the door. But against you is that same
fact. It seems rather contrary to an idea of a Constitution with three
branches that the executive would be free to do whatever they want, whatever
they want without a check."
Justice Breyer continued: "We have the possibility of really helping you
with what you're really worried about, which is undue court interference, by
shaping the substantive right to deal with all those problems of the
military that led you to begin your talk by reminding us of those problems.
So if that's the choice, why not say, `Sure, you get your foot in the door,
prisoners in Guantánamo,' and we'll use the substantive rights to work out
something that's protective but practical?"
Mr. Olson barely had a chance to respond before Justice Antonin Scalia
began to make his argument for him. Addressing Mr. Olson, but clearly aiming
his rebuttal at Justice Breyer, Justice Scalia said: "We can't call
witnesses and see what the real problems are, can we, in creating this new
substantive rule that we're going to let the courts create."
He continued: "We have only lawyers before us, we have no witnesses, we
have no cross-examination, we have no investigative staff. And we should be
the ones, Justice Breyer suggests, to draw up this reticulated system to
preserve our military from intervention by the courts?"
The exchange provided one of the few dramatic moments of the argument,
indicating that however the court resolves this case, the decision is not
likely to be unanimous.