Justices question US lawyer on Guantanamo Bay prisoners

1.00pm

WASHINGTON - US Supreme Court justices have questioned the Bush administration's argument that foreigners captured during its war on terrorism can be held at a US military base in Cuba without any access to American courts.

In the first test of President George W Bush's policies adopted after the September 11, 2001, attacks, the justices seemed closely divided on whether the Guantanamo Bay prisoners can go to the American legal system to challenge their detention.

Several justices stressed they were only considering whether US courts have jurisdiction, not the merits of the claims by prisoners, who say they are innocent and have been held illegally in violation of their civil rights.

US Solicitor General Theodore Olson defended the Bush administration's controversial policy, which has come under attack by civil liberties and human rights groups.

John Gibbons, representing the detainees, said the United States had created "a lawless enclave" at Guantanamo. About 595 foreign nationals, designated "enemy combatants," are being held at the base as suspected al Qaeda members or Taleban fighters.

"What's at stake in the case is the authority of the federal courts to uphold the rule of law," Gibbons, a retired judge, said in beginning his arguments in the historic case.

Olson, the government's top courtroom lawyer, replied the federal habeas corpus law that allows prisoners to challenge their detention does not apply to the Guantanamo detainees.

He argued that Cuba, under a lease with the United States concerning the base, has ultimate sovereignty and that places the detainees beyond the control of US courts.

Most of those held at the base were seized during the US-led campaign against the Taleban government in Afghanistan and against Osama bin Laden's al Qaeda network after the September 11, 2001, attacks. The first detainees arrived at Guantanamo in January 2002.

The four more liberal justices sharply questioned Olson.

Justice David Souter asked whether bringing people from Afghanistan to Guantanamo was "the same thing in functional terms" as if they had been brought to the US capital.

Olson pointed to a 1950 Supreme Court ruling that held US courts lacked jurisdiction to consider challenges by German prisoners captured by US forces during World War 2 while fighting with Japanese troops in China.

However, Justice Ruth Bader Ginsburg said the Germans had been tried and convicted by a military commission, unlike the Guantanamo detainees.

Justice John Paul Stevens also seemed sceptical that the 1950 ruling applied.

Justice Stephen Breyer cited a number of problems with Olson's argument, including that the government's power would be unchecked and its interpretation of the habeas law contrary to "several hundred years of British history".

Several conservative justices, however, appeared sympathetic to the government position.

Chief Justice William Rehnquist said the rights under habeas corpus have never extended "to the battlefield" and he expressed concern about federal judges deciding such cases.

Justice Antonin Scalia said the US Congress, rather than the Supreme Court, could better decide whether to change the habeas corpus law to allow jurisdiction. "Congress could do all that," Scalia said.

It was not clear how Justices Sandra Day O'Connor and Anthony Kennedy, moderate conservatives who often control the outcome on the divided court, might vote.

A ruling in the case is due by the end of June.

- REUTERS