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Supreme Court to hear Gitmo appeals

From Bill Mears
CNN Washington Bureau

This image of detainees was released by the U.S. in 2002.

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WASHINGTON (CNN) -- Raising the curtain on an important test of the legal muscle of the Bush administration's sweeping antiterrorism policies, the Supreme Court will hear two appeals Tuesday that question whether hundreds of terrorist suspects imprisoned in near-secrecy at an overseas military base are being detained lawfully.

It is the first time the justices will review the constitutionality of this aspect of the Bush administration's war on terror, which grew quickly from the September 11, 2001, attacks. Two more terror-related cases will be argued at the Court the following week.

Tuesday's oral arguments will be limited to the narrow -- but significant -- question of whether U.S. courts have jurisdiction over the "detention of foreign nationals captured abroad ... and incarcerated at the Guantanamo Bay Naval Base, Cuba."

The consolidated cases involve the overseas detention of more than 600 males from about 40 countries, said to be al Qaeda or Taliban fighters captured mostly in Afghanistan and Pakistan. Some of those held are under age 18. Some have been incarcerated for more than two years at the U.S. Navy base in Guantanamo, without access to lawyers or family.

The appeals could determine whether the Guantanamo facility, officially part of Cuba, can truly be considered sovereign, since it is absolutely controlled by U.S. forces. The Navy makes monthly payments of $34 to the Cuban government to lease the land, part of a binding agreement reached a century ago. If the justices decide Guantanamo is technically Cuban soil, they may lack the power to oversee foreign prisoners held there.

The government has been interrogating the men, and deciding whether they will face a military tribunal or be released back to their home countries. Dozens have already been freed.

Solicitor General Theodore Olson, in the Justice Department's legal brief filed with the Court, argues the detentions are lawful since "American soldiers and their allies are still engaged in armed conflict overseas against an unprincipled, unconventional and savage foe."

Prominent former judges, former POWs, representatives of human rights groups and retired military members are protesting the detentions in briefs filed with the court.

Claim questions secrecy

The first case was brought by parents of four detainees. Shafiq Rasul and Asif Iqbal are British citizens, and David Hicks and Mamdouh Habib are from Australia. Hicks is one of six detainees President Bush has recommended face military tribunals.

A separate group of relatives of 12 detained Kuwaiti men also brought a habeas corpus claim, demanding the government explain why it continues to hold the men in secret.

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 a court to determine if the person's detention is lawful and justified.

A federal appeals court agreed with the government, prompting this latest appeal.

But Michael Ratner, president of Center for Constitutional Rights, a New York-based group representing the detainees in their appeal, said courts should not duck their responsibility to intervene.

"This lawless situation must not continue. Every imprisoned person should have the right to test the legality of their detention. It is this basic principle that has been denied to our clients," Ratner said.

In its appeal to the court, attorneys for the detainees said they fear the government "may simply forget them, in the vain hope the world will as well."

Terrorism cases on the docket

The Supreme Court last year rejected a similar appeal involving the Guantanamo Bay detainees, filed on their behalf by a group of clergy, lawyers and civil rights advocates. The justices offered no reason why the court dismissed that appeal, but legal analysts say it may have been because the advocates had no legal standing since they were not relatives of the detainees.

The justices will hear two more terrorism-related cases this month, involving the rights of U.S. citizens held on American soil as "enemy combatants." Yaser Hamdi was captured on the battlefield in Afghanistan in late 2001. Jose Padilla was arrested in Chicago in May 2002, accused of conspiring to detonate a crude radioactive bomb in the U.S.

Until now, the justices have been reluctant to interfere with enforcement of various Justice Department policies. The Court rejected three separate appeals to allow public access to closed hearings involving hundreds of so-called "special interest" immigrants. Many of them were of Muslim or Arab descent, detained in near secrecy shortly after the terror attacks two years ago.

The justices last year also rejected an appeal from the American Civil Liberties Union over government surveillance powers, which were increased with the passage of the USA Patriot Act by Congress shortly after the September 11, 2001, attacks. In the midst of the war on terrorism, the courts could ultimately establish new legal precedent. "There are issues we have never dealt with before," said David Yalof, a political scientist at the University of Connecticut. "And some of it has to be made up as we go along."

A ruling in the Guantanamo detainees cases is expected by early July.

The cases are Rasul v. Bush (03-0334) and Al Odah v. U.S. (03-0343).

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