Divided court takes up rights of detainees

Nearly six years after prisoners in the war on terror were sent to Guantanamo Bay, Cuba, a clearly divided Supreme Court debated Wednesday whether they deserved hearings before an independent judge to argue their innocence.

For the detainees: "These men have been held in isolation for six years," said attorney Seth Waxman, solicitor general in the Clinton administration. While he was seeking a right to a fair hearing for the more than 300 men held at Guantanamo, he was directly representing six Algerians arrested in 2001. He said their plight illustrates how the Bush administration has deprived prisoners of fair hearings and that special military tribunals established by the Bush administration are constitutionally inadequate.

For the Bush administration: Solicitor General Paul Clement argued that the military had gone further than ever to give fair hearings to war prisoners. In World War II, for example, more than 400,000 German prisoners were held on U.S. soil, and no one thought they had a right to challenge their detention in the federal courts, he said.

Under a procedure adopted three years ago, the Guantanamo prisoners are given a hearing before three military officers, who check to see if there is evidence that justifies holding them. But the detainees do not have lawyers and have no right to challenge the evidence against them.

Most questions from the justices seemed to indicate that they accept that detainees have some rights to challenge their detention. The key question that emerged was whether the limited court review created by the Bush administration and Congress in response to earlier Supreme Court rulings for the detainees is good enough.

The court has twice ruled that people held there without charges can go to civilian courts to seek their freedom. Each time, the administration and Congress, then controlled by Republicans, has changed the law to try to close the courthouse doors to the detainees.

The court's resolution of this matter, expected in a decision in the spring, could determine whether the detainees receive prompt hearings that might result in freedom for some or face many more months, even years, of legal proceedings and imprisonment.

It is likely to be a close call. Although oral argument questions are an imperfect predictor, Wednesday's nearly 90-minute session suggested that justices are divided more or less evenly.

In one camp: Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas.

"Do you have a single case in the 220 years of our country ... in which habeas was granted to an alien in a territory that was not under the sovereign control of the United States?" Scalia asked. He added, "There's not a single one in history."

In the other camp: Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Stevens wrote the 2006 majority opinion striking down military commissions established for Guantanamo, and Souter and Breyer appeared especially impassioned Wednesday. "It's been six years, and habeas is supposed to be speedy," Breyer said. "It's a serious problem."

The likely swing vote: Justice Anthony Kennedy, the court's consistent swingman, seemed to straddle the center with his few questions. He is a reasonable bet to write the majority opinion.

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