Last week, the United States Supreme Court agreed to hear an appeal to lower-court rulings affirming the government's right to hold more than 650 foreign terrorist suspects. Their indefinite detention at the U.S. Navy base at Guantanamo Bay, Cuba, has outraged civil liberties groups and the families of the men - mostly Muslim - who are being held virtually incommunicado. The case could bring two powerful branches of government into direct conflict.
In court briefings, U.S. Solicitor General Theodore Olson, representing the executive branch, argued that the Supreme Court does not even have jurisdiction to hear the case, because the detainees are foreign nationals, whom the government calls "enemy combatants," in military custody outside the nation's borders. But legal analysts say the strong-minded high court may choose to flex the judicial branch's muscle and rule that it certainly does have authority over the case.
Kenneth Jost covers legal affairs for CQ Press in Washington. He told VOA's Talk to America program that many of the detainees from 40 or more countries who were shipped to Guantanamo Bay for prolonged interrogation, have been in custody since the days after the terrorist attacks on New York and Washington, more than two years ago. While they themselves have no standing before U.S. courts, family members of 40 Kuwaiti, British, and Australian prisoners filed suit on their behalf.
"They claimed that Guantanamo Bay was, for all practical purposes, the United States," said Mr. Jost. "It's leased permanently to the United States by the government of Cuba. In one case, President Bush himself was named as the defendant. The government says Guantanamo Bay is outside the United States. And under an established Supreme Court decision handed down in 1950, aliens who are outside the United States just have no right to go into an American court."
The American Center for Law and Justice has filed briefs supporting the Justice Department's position. The key point, says the group's chief counsel, Jay Sekulow, is that the Guantanamo Bay detainees are illegal combatants, not legitimate prisoners of war.
"They're not part of a nation-state. This is a war on terrorism that's very different in that context," said Mr. Sekulow. "The idea that the courts would come in to second-guess the decision of the president would be, in our view, a violation of what's called the 'separation of powers.' This isn't the first time the Supreme Court's been called in to review this, and the court was very clear that these decisions are made by the president as commander-in-chief, not to be second-guessed by federal courts."
Richard Willing, the Supreme Court correspondent for the USA Today newspaper, told VOA's Talk to America program that the relatives of the detainees were quite shrewd. They dangled what he called catnip in front of the justices to get them to take the case. That irrestible herb, he said, was the chance for the high court to assert its power against that of the presidency.
"It's perfectly possible that the court could come back and say, 'You know what? We've looked at it, and we decide that the court back in 1950 was right. It applies here, and we don't have any jurisdiction," said Mr. Willing. "We'd just like to be the ones to say so, not the Administration. So that may be all we're hearing here - an indication once again of the fact that that we are a government divided into three co-equal parts."
Darryl Jones, who is one of the lawyers representing the detainees, said some of the men were civilians who found themselves in the wrong place at the wrong time when the United States scoured the world for terrorists.
"We have people, some of whom might not be enemy combatants, just sitting there without any [due] process being given to them. The United States military has primary jurisdiction - and in fact, the Geneva Convention gives them primary jurisdiction over these detainees, I don't dispute that. What I do dispute is that they can't sit on their hands and do nothing and then expect that these detainees will have no recourse whatsoever," said Mr. Jones.
Mr. Jones says even if most of the detainees were enemy operatives in a terrorist war, Americans should be scrupulous about their fair treatment - if only because a denial of their basic rights could one day be used by enemy commanders to justify the mistreatment of American captives. But Jay Sekulow at the Center for Law and Justice says dictators don't pay much attention to protocol.
"When U.S. soldiers were captured in Iraq, they were summarily executed," recalled Mr. Sekulow. "They weren't put in prison. They were shot in the head. If you'll remember, we saw them dragged through the streets of Baghdad and other places in Iraq. There was no compliance with international law. Yet these were American soldiers, in uniform, that were captured. It's a very different scenario. The demand there for Geneva Protection should have been made, as it correctly was."
Next March, the U.S. Supreme Court will hear oral arguments - not about the rights of these detainees in Cuba, but on the more narrow question of whether American courts even have the authority to look into their treatment. A decision is expected to follow in July, toward the end of the high court's term.