Court Case Could Have Big Impact on Detainees

The Supreme Court's surprise decision this week to hear another case involving the rights of Guantanamo Bay detainees could have a profound impact on hundreds of prisoners there, and for U.S. policy on detaining enemy combatants.

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The Supreme Court's surprise decision to consider this week whether Guantanamo Bay detainees can take their cases to federal court could have profound impact for hundreds of prisoners there and for U.S. policy.

NPR's National Security Correspondent Jackie Northam reports on some of the possible consequences.

JACKIE NORTHAM: There are approximately 375 detainees being held at Guantanamo Bay military prison camp. Only a handful have ever been charged, only one has gone through a full military trial. Pentagon officials admit that most are not interrogated any longer. And prisoners' lawyers say the detainees are languishing in their cells.

The decision by the U.S. Supreme Court to review whether the detainees have the right to challenge their incarceration in American courts will likely provide some shred of hope for those held at Guantanamo - some more than others.

Over the past five years, the Pentagon has subtly divided the detainees into three groups. The first are those the Bush administration wants to bring before a military tribunal or commission - that's about 75 to 80 prisoners. The second group are those the Pentagon is trying to release or transfer back to their home countries or a third nation.

Alan Liotta, the director of the Pentagon's Office of Detainee Affairs, during a conference call with bloggers, said that leaves a third group of about 145 detainees.

Mr. ALAN LIOTTA (Principal Director, Office of Detainee Affairs, Department of Defense): The third groups of detainees is that group of detainees who are not going to be brought before military commissions for any one of a number of reasons and who we do not feel secure enough in sending back to their home country. And so those guys are the ones that I think we have to look at as being held over the long term.

NORTHAM: As it stands now, this group of prisoners whom the administration deems enemy combatants won't be charged, won't be tried, and won't be released until the so-called war on terror is over.

Until now, they and the others have not been able to challenge their open-ended detentions. That may change depending on what the U.S. Supreme Court decides. But that ruling could take months. And in the meantime, the political winds could shift. There's already an increasing clamor to shut Guantanamo and move them on to the American mainland. The Bush administration has been quiet about this option.

But earlier this week, the Pentagon's Liotta indicated it's unlikely that will happen, in part, because of the Geneva Conventions. The Bush administration says the Geneva Conventions don't apply at Guantanamo but would apply on U.S. soil.

Mr. LIOTTA: If we were to bring them into the United States, we would have to put them in one of two places: either in a U.S military prison like Leavenworth or in a U.S. federal penitentiary. Under Geneva, one of the requirements is that enemy combatants can't be housed with common criminals.

NORTHAM: Liotta says new facilities would have to be built or vast areas of existing prisons blocked off. He said bringing Guantanamo detainees onto American soil would place a huge burden on the local communities and first responders because of the increased security risk.

Mr. LIOTTA: We know for a fact that al-Qaida would like nothing more than to break some of their brethren out of the facility where they are being held by the United States. And we know for a fact that they've had plans drawn up to do that. We also know that Guantanamo, in its isolation, is a huge deterrent against them being able to attack there.

NORTHAM: And Liotta says bringing the Guantanamo prisoners into America would likely open them to U.S. constitutional protections, including the right to challenge their indefinite detentions, the same issue the U.S. Supreme Court will grapple with next term.

Jackie Northam, NPR News, Washington.

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Primer: Guantanamo Detainees' Rights

Supreme Court Will Hear Detainee Cases

hide captionA guard talks with a Guantanamo detainee in an April 2007 file photo. The Supreme Court has agreed to review whether detainees at the U.S. prison camp in Cuba can challenge their confinement in federal court.

Paul J. Richards/AFP/Getty Images

About the Author

Anne Hawke is an editor and producer with NPR. She is a graduate of New York University's School of Law.

In a highly unusual reversal, the Supreme Court has agreed to review whether detainees at Guantanamo Bay, Cuba, can challenge their confinement in federal court by filing what is known as a writ of habeas corpus. The announcement represents a rare change of course for the nation's high court, which earlier decided not to take on the case.

Here, a guide to some of the legal issues involved:

What is habeas corpus?

"Habeas corpus" is a Latin phrase meaning "you have the body." It's an ancient concept. In old English law, it was used to refer to a judge's order (or "writ") to bring a prisoner before a court to determine whether his imprisonment was unlawful.

In modern times, death row inmates have used this process to get access to federal court to challenge their confinement. In 1996, however, Congress passed a law cutting back on habeas petitions in death-penalty cases, reasoning that those appeals had become so numerous that they were eroding the effectiveness of the death penalty.

What does habeas mean for a Guantanamo detainee?

For a detainee in the prison at the U.S. Naval base in Cuba, habeas corpus refers to the right to get direct access to federal court to challenge his imprisonment. Habeas is a process that challenges the lawfulness of how or why a detainee is confined at Guantanamo.

What is the current status of habeas review?

Detainees do not currently have access to federal courts through habeas corpus to challenge the lawfulness of their confinement. In 2005, Congress passed the Detainee Treatment Act, which eliminated habeas corpus for all detainees at Guantanamo.

The Guantanamo military tribunals, called military commissions, were created by executive order in November 2001, but in June 2006, the Supreme Court struck down the system. In October 2006, Congress passed the Military Commissions Act, establishing a new system of military tribunals to hear cases involving Guantanamo detainees. Those cases include allegations of war crimes, and determinations of whether a detainee is an enemy combatant. Access to federal court is available under the Detainee Treatment Act only if a detainee is appealing the determination of his status as an enemy combatant or a war crime conviction. (See accompanying chart.)

What has the Supreme Court said regarding habeas corpus and detainees?

The Supreme Court reversed itself Friday by deciding to hear a case involving 45 men at Guantanamo who filed writs of habeas corpus. The detainees are asking that a federal judge review whether it is constitutional to keep them locked up indefinitely as enemy combatants — without being charged or having access to lawyers.

But Congress has barred detainees from filing writs of habeas corpus. The detainees challenged that law in court, but a federal appeals court ruled against them in February. In April, the Supreme Court declined to review the appeals court's decision.

In changing course now, the high court ordered that new briefs be filed and said it would hear the cases later this year.

Meanwhile, Democrats on Capitol Hill are calling for Congress to restore detainees' rights to file habeas corpus lawsuits in federal court.

What changes are congressional Democrats calling for?

Democrats want to restore the right of habeas review to Guantanamo detainees. In early June, the Senate Judiciary Committee voted 11-8 for a proposal that would do just that. Sen. Arlen Specter of Pennsylvania was the only Republican to join the panel's Democrats in voting for the bill.

In response, the Justice Department issued a statement indicating that President Bush's senior advisers will recommend that he veto the bill.

Why does the Justice Department oppose these changes?

In a letter to Judiciary Committee Chairman Patrick Leahy (D-VT) in early June, Attorney General Alberto Gonzales said that granting detainees greater access to U.S. courts would overburden those courts. It would also delay the process of "bringing enemy combatants to justice." Quoting a 1950 Supreme Court ruling, Gonzales warned that "the extension of habeas corpus to alien combatants captured abroad 'would hamper the war effort and bring aid and comfort to the enemy.'"

Gonzales said the system of military tribunals created last year already offers Guantanamo detainees "an unprecedented degree of process."

Does the U.S. Constitution require that detainees be granted habeas review?

The Bush administration and many Republicans argue that the rights guaranteed under the U.S. Constitution — including the right to access the courts — extends only to individuals present on U.S. territory and to U.S. citizens who are terrorism suspects, not to alien detainees at Guantanamo.

Democrats and other critics of the Detainee Treatment Act argue that the removal of habeas corpus is unconstitutional. They claim that habeas is fundamental to civilized society, and that stripping Guantanamo detainees of that right has diminished America's moral standing abroad.

What other judicial processes are in place for Guantanamo detainees?

Only three cases have been brought under the new system of military commissions at Guantanamo Bay. Two of those cases were recently dismissed. In the third case, the detainee pleaded guilty and was repatriated to Australia.

Without habeas corpus, there are currently two routes to the federal courts. (See accompanying chart.) The Combatant Status Review Tribunal determines whether a detainee is an enemy combatant. The Court of Military Commissions decides whether a detainee committed war crimes. Both of those decisions are ultimately reviewable by the U.S. Circuit Court of Appeals for the District of Columbia and the Supreme Court of the United States.

To be released from Guantanamo, a detainee must either be deemed not an enemy combatant, or successfully challenge his detention on some other grounds through habeas review. If acquitted on war crimes charges, a detainee remains at Guantanamo as an enemy combatant. If convicted of war crimes, a detainee stays at Guantanamo until the end of his criminal sentence, even if the remaining detainees are released.

Sources: U.S. Department of Justice; Madeline Morris, a law professor at Duke University and chief counsel to the Office of the Chief Defense Counsel for Military Commissions.

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