LIANE HANSEN, host:
This is WEEKEND EDITION from NPR News. I'm Liane Hansen.
This week the Supreme Court returns to the subject of Guantanamo Bay detainees and what rights the prisoners there have. For a preview, NPR's legal affairs correspondent Nina Totenberg is here.
And, Nina, this is the third time the court has examined the rights of the prisoners at Guantanamo Bay. What's different this time?
NINA TOTENBERG: Well, Liane, in some ways, the walls are closing in on the administration. As you said, twice before the court has ruled on issues involving the prisoners, and twice before the Bush administration has - not to put too fine a point on it - lost.
But in both of those instances, the president acted on his own. And this time, he went to Congress, and he got a stamp of approval for pretty much everything that the administration's been doing at Guantanamo in terms of legal process.
HANSEN: Okay. So what's the big issue here?
TOTENBERG: Whether the detainees have a right to go into to the U.S. courts to force the administration to justify this kind of imprisonment, the detainees say they have the constitutionally guaranteed right of habeas corpus.
Now, the concept of the writ dates back to the Magna Carta in England in 1215. The founding fathers put it into the Constitution as a right, and that right basically is for a prisoner to go before a federal judge and ask that authorities demonstrate a justification for this individual's imprisonment, and if the state can't do that adequately, the court is authorized to order the prisoner's release.
HANSEN: What's the administration's argument against that right here?
TOTENBERG: The administration argues, first, that the detainees have no constitutional rights because they're not on sovereign American soil, and second, that even if they do have constitutional rights, the Congress has the right to suspend the writ of habeas corpus as long as an adequate and effective alternative is put into place, which is exactly what the Congress did here, or at least, that's what the administration says.
Now, the lawyers for the detainees counter on a variety of fronts. First, they contend that Guantanamo is sovereign U.S. territory, that we leased it in perpetuity that U.S. law governs there. Indeed, if you put a Cuban postage stamp on an envelope there, it would go nowhere.
Second, the detainee lawyers argue that the Constitution only allows for a suspension of the writ of habeas corpus in times of rebellion or invasion. Neither of which has occurred here. And third, they argue that the system put in place by the administration and ratified by Congress is neither an adequate nor an effective substitute.
The hearing system for evaluating detainees, they say, is a sham. The prisoners have no right to a lawyer, no right to see most of the evidence against them because it's classified, and the standard of proof presumes the government's evidence is accurate even if it's the result of coercion or torture.
HANSEN: Isn't there an appeals process?
TOTENBERG: Yes, there is. And the administration is urging the Supreme Court to let the appeals process go forward before intervening. But the detainees counter that under the statute passed by Congress, the detainees themselves are only entitled to appeal to the D.C. Court of Appeals, not to the Supreme Court, and only violations of the established rules, and since the established rules are deeply flawed, they contend, the appeals process is also deeply flawed.
HANSEN: Usually, I don't like to ask this kind of question, but are there predictions on the outcome of the case?
TOTENBERG: Well, that's always dangerous. But even Bush administration officials are privately pessimistic. That's largely because the Supreme Court initially punted on this case. That is it decided initially not to hear it. And then in a nearly unprecedented move, it reversed course.
HANSEN: Do you know why the court changed its mind about hearing the case?
TOTENBERG: No, we don't know. But the reversal came shortly after an affidavit was filed in a case from a lieutenant colonel who's been assigned to coordinate evidence, at least for six months or so at Guantanamo. And he contradicted the government's rosy portrayal of the system.
Lieutenant Colonel Stephen Abraham has now been joined by another officer, and both have filed affidavits, attesting to what they say is a chaotic, misleading and inaccurate evidence collection at Guantanamo. They say that there's command control from above on the office whose service hearing officers, in other words, that these aren't really independent hearing officers, and that these folks on the hearing panels don't even have the power to question the evidence themselves.
HANSEN: How do the justices line up on this?
TOTENBERG: Well, all we can do at the moment is go on past voting patterns. When it was an American imprisoned indefinitely without charged, the court voted 8 to 1 against the administration. But those folks weren't at Guantanamo. With non-citizens at Guantanamo, the court has been more divided - first, 6 to 3, then last time with two new Bush appointees on the court, 5 to 4, with Justice Anthony Kennedy casting the deciding vote, and one suspects he will be the deciding vote again in this case.
HANSEN: NPR's legal affairs correspondent Nina Totenberg.
Nina, thanks a lot.
TOTENBERG: Thanks, Liane.