Detainee Rights to Top Supreme Court Docket
The U.S. Supreme Court formally opens its new term Monday, and as always, some of the most pressing national controversies are on the docket, from the rights of detainees at Guantanamo Bay, Cuba, to a major constitutional test of gun owners' rights.
Writ of Habeas Corpus
This year, Justice Anthony Kennedy's vote is expected to be decisive in the Supreme Court's biggest case, a test of the rights of Guantanamo detainees.
Among the prisoners before the court is a group of Bosnians who were arrested in their homes by Bosnian police shortly after the Sept. 11, 2001 attacks. The police acted at the behest of U.S. officials who said they had evidence that the six men were involved in a plot to blow up the U.S. Embassy. Bosnian authorities then joined with Interpol and U.S. Embassy officials to conduct a three-month investigation, at the end of which the Bosnian supreme court ruled that the charge was not supported by evidence and ordered the men released.
On the same day, an international tribunal staffed by several European countries issued an order forbidding the removal of the men from Bosnian territory. Nonetheless, the men were turned over to U.S. authorities and shipped to Guantanamo, where they have remained ever since, despite repeated statements from the Bosnian government that it is willing to take them back.
The detainees claim that they have the right to challenge their imprisonment in the U.S. courts, using the constitutionally guaranteed procedure called a writ of habeas corpus. Historically, the writ has been an important mechanism in safeguarding individuals from arbitrary state action. It guarantees a complete review by a neutral fact finder to ascertain whether the government has justifiably jailed someone. The Guantanamo prisoners contend there is no neutral fact finder at Guantanamo hearings, no way for the prisoners to rebut secret evidence, no lawyer to help them to secure evidence of their innocence, and that the legal standard presumes them guilty.
Congress, they contend, violated the Constitution, when it stripped them of the right to challenge their detentions in court after an earlier Supreme Court ruling that permitted them to do so. The Constitution, they note, provides for suspension of the writ of habeas corpus only in cases of invasion and rebellion, and even then requires an alternative system of basic due process rights.
The Bush administration, backed by a federal appeals court, counters that since the men are being held outside the United States, they have no constitutional rights. The detainees have adequate rights to appeal under the law passed by Congress when it stripped the detainees of the right of habeas corpus, the administration contends.
The Court's Reversal
The Supreme Court initially decided to stay out of the detainee cases this year, but the justices did a complete and nearly unprecedented reversal in June, deciding that they could wait no longer. The turning point may have been the submission of an affidavit from a military lawyer in the Army Reserve who was in charge of ensuring that exculpatory evidence was turned over to the tribunals at Guantanamo. Lt. Col. Stephen Abraham said in his affidavit that the information provided at the tribunals was often incomplete, dated, and inaccurate, and that even the officers serving on review panels at Guantanamo were not able to question or test it.
"It's not that the truth was never a goal," Abraham said, "but it was the first victim."
Copyright 2007, NPR
Nina Totenberg is Legal Affairs Correspondent for National Public Radio. Her commentary is exerpted from NPR's Morning Edition, October 1, 2007, http://www.npr.org/templates/story/story.php?storyId=14820563, accessed 10/01/07. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.