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Lawyers for 'Enemy Combatants' Seek Release of Clients Through US Courts - 2004-04-20

Lawyers for some of the hundreds of so-called enemy combatants being detained by the Bush administration have asked the United States Supreme Court to allow their clients to seek their release through the U.S. court system.

At issue is whether the roughly 600 men from more than 40 countries being held at the U.S. naval base at Guantanamo Bay, Cuba, have the right to challenge their detention through the American legal system.

Among those arguing on their behalf before the Supreme Court was attorney John Gibbons. He told the nine justices that the United States has created, what he called, a lawless enclave at the military base in Cuba to keep enemy fighters captured in Afghanistan and Pakistan out of the reach of the U.S. courts.

"We hope that we have convinced the court that that is inconsistent with the rule of law, and inconsistent with 215 years of the rule of law with respect to federal detention of anyone, anywhere," he said.

Many of the Guantanamo detainees have been held for two years without being formally charged or given access to a lawyer.

Among those who witnessed the oral arguments before the Supreme Court was Rabiye Kurnaz. Her son Murat is among those detained at Guantanamo.

"Murat Kurnaz, my son, is detained in Guantanamo," she said. "I am a bit optimistic this nightmare will end soon and I hope he is innocent and I hope he will be released soon."

The Bush administration argues that allowing the Guantanamo prisoners access to American courts would allow federal judges to micro-manage the war on terrorism.

Administration lawyers also told the high court that they believe the government has the right to hold and interrogate the prisoners as long as possible, since they are 'enemy combatants' and not considered prisoners of war who would have guaranteed rights under the Geneva Convention.

A number of conservative legal groups supported the administration's case in court by submitting friendly briefs. Among them was the American Center for Law and Justice. Jay Sekulow is the group's head counsel.

"And what is clear today is that a fundamental decision is going to be made and that is who runs the war?" he said. "Is it 800 U.S. District Court (federal) judges or is it, as the Constitution says, the President of the United States as Commander in Chief? We are hopeful that the courts can understand its proper function and that they are not in charge of the war on terrorism or any other war for that matter."

Administration officials also contend that U.S. courts have no jurisdiction in the case because the Guantanamo base where the detainees are being held is outside the United States.

Other conservative activists have argued that the U.S. legal system has always given the federal government and the military broad authority to prosecute wars as they see fit.

Brad Berenson served the Bush administration as a former associate White House counsel. He now represents a group called Citizens for the Common Defense.

"The law currently, it is very clear that alien enemies held abroad by our military captured during wartime do not have a right of access to our courts," he said. "In fact, it would be unheard of for someone taken prisoner during the course of an armed conflict to be given a lawyer and the right to sue his captors in their home courts. It has never happened."

However, civil liberties groups and liberal legal organizations argue that the continued detention of the Guantanamo detainees without access to legal representation undermines long-standing U.S. principles of democracy and the rule of law.

Attorney Tom Wilner represents some of those who are asking the Supreme Court to intervene in the plight of the detainees.

"It is an open secret in Washington that many of the people at Guantanamo Bay are innocent," he noted. "They have never been given a hearing, that we are violating the Geneva Convention. So aside from what the (Supreme) court does, we have got to look at this and decide whether we as a country want to abide by our international commitments. If we do not, we put in harm's way every American who goes overseas in battle."

Next week, the high court takes up the cases of two American citizens who have been detained as enemy combatants in the war on terrorism.

The Supreme Court will hand down rulings in all the terrorism-related cases sometime before the end of June.