U.S. seeks stay of order giving detainee access to lawyer
From Bill Mears
CNN Washington Bureau
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WASHINGTON (CNN) -- The Supreme Court was asked by the Justice Department Wednesday to delay giving a terrorism suspect detained overseas access to a lawyer until the justices decide the larger legal issue of what rights other so-called "enemy combatants" are afforded.
Solicitor General Theodore Olson filed an emergency appeal with the court requesting a stay in a lower federal court order. The 9th U.S. Circuit Court of Appeals in December ruled a Libyan man captured by U.S. forces in Afghanistan has the right to see a lawyer and have his appeal heard in a federal court.
An attorney hired by the man's family has demanded immediate access to his client.
Falen Gherebi is one of about 650 men being held in secret military custody in the U.S. Navy base at Guantanamo Bay, Cuba. The military says the men, captured mostly in Afghanistan and Pakistan, are suspected of being al Qaeda or Taliban fighters. Some have been held for more than two years. The detainees have been undergoing interrogation to decide whether they will face a military tribunal or be released back to their home countries.
The Supreme Court in April will hear oral arguments in a similar but separate appeal involving other Guantanamo detainees. A ruling in that case is expected by late June.
At issue is whether U.S. courts have jurisdiction to intervene in the continued U.S. military detention of citizens held overseas, and whether that detention violates constitutional and international law.
Olson argued in his latest appeal that the 9th Circuit "refused to stay its proceedings" in the Gherebi ruling, even after the Supreme Court agreed to decide the same issues in the related case.
The appeals court is prepared to soon notify Gherebi of its ruling granting him legal representation.
Since the military is still conducting its interrogation, Olson said, allowing Gherebi access to an attorney would "interfere with the military's efforts to obtain intelligence from Gherebi and other Guantanamo detainees related to the ongoing was against terrorism."
The military says its interrogations have yielded important intelligence information. The government cites a 53-year-old case as precedent for denying courts the habeas corpus jurisdiction to hear appeals of non-citizens held on foreign soil. A writ of habeas corpus would require that a prisoner be brought before the court to determine if the person's detention is lawful and justified.
Lawyers for the prisoners, as well a number of civil rights and other groups, have argued the men should have the right to test the legality of their detention, calling it a basic constitutional principle.
Lower federal courts have split on the issue.
The case is Bush v. Gherebi (A-0637).
