A KEY TO THE BUSH administration’s power to hold foreign prisoners indefinitely at Camp X-Ray without hearings or access to family, friends or lawyers, and one reason why the U.S. Supreme Court decided to hear a challenge to the policy, is the bizarre status of the U.S. naval base at Guantanamo Bay, Cuba.

The high court announced this week that it would hear claims by the wives and parents of 16 Guantanamo Bay prisoners that their loved ones’ captivity and interrogation without being charged with anything and without a hearing (or any prospect of one) violate constitutional guarantees of due process of law. At least four justices decided to take the case, surprising legal observers who have noted the broad deference that federal courts have accorded President Bush in the war on terrorism. This is the first time the court has agreed to hear an appeal from U.S.-held prisoners captured in response to the 9/11 attacks.

The Bush administration reports that 660 prisoners currently are being held at the U.S. naval base at Guantanamo Bay. The Supreme Court will not consider whether they have been treated properly, or even whether the U.S. has any right to hold them. The justices’ review is limited to whether the courts have any jurisdiction even to hear the claims. If the court rules in favor of the prisoners’ families, their specific claims will be heard in trial courts.

The government has argued that the Constitution and the courts do not reach the prisoners because they are enemy aliens, over whom the president has unique wartime authority, and because they were captured and are being held outside U.S. territory. Guantanamo Bay is not U.S. territory, Solicitor General Theodore Olson said in the government’s brief, because it remains under the sovereignty of the Republic of Cuba.

The assertion is problematic. The claims to Guantanamo Bay date to the Spanish-American War, when U.S. military forces liberated Cuba from Spain, then granted the island conditional independence. In 1903 the new nation, with U.S. military personnel still on its soil, leased the bay and adjacent lands back to the U.S. Later amendments made the lease perpetual, capable of being voided only by the governments of both Cuba and the U.S.

The Navy maintained its base there through the revolution, the Bay of Pigs fiasco, the Cuban Missile Crisis and up to the present day, putting the area in the unique position of being a U.S. base in a communist nation that the United States does not officially recognize. The U.S. still sends Cuba annual lease payments of about $4,000. Cuban President Fidel Castro consistently rejects them, arguing that the lease was forced upon his country and is void.

Except for a handful of Cuban workers who check in at Guantanamo each day for work and go home at night, no Cuban nationals are permitted near the U.S. base. Meanwhile, under the terms of the treaty, the U.S. recognizes “the continuance of the ultimate sovereignty of the Republic of Cuba” over the area, in Olson’s words, although it still doesn’t recognize the Republic of Cuba itself.

Under Supreme Court and lower court precedents, foreign nationals have certain fundamental constitutional rights in U.S. territories, like Guam, or the former Panama Canal zone and the former American Sector in post-war Berlin. Olson argues that Guantanamo Bay does not fall into the same category because Castro’s government retains sovereignty there.


THAT IS NONSENSE, according to the prisoners’ families. Castro, branded an enemy by every U.S. administration since John F. Kennedy’s, could never set foot in the zone, which is controlled by the U.S. military and has no prospect of ever being turned over to Cuba.

In addition to precedents that spring from U.S. territories, the justices also will be taking a close look at a 1950 case that rejected claims by Germans captured in China at the close of World War II. The German civilians, who were aiding imperial Japan, were captured and held by the U.S. military on charges of being enemy aliens. They argued they were not enemies, and sought a hearing in U.S. court to have their status adjudicated. But the hearing was denied. The Supreme Court ruled that it lacked jurisdiction even to hear the case. Olson argues that the position of the alleged Taliban and al Qaeda fighters at Guantanamo Bay is exactly the same, and that jurisdiction is lacking.

The families of the detainees, though, note that China had sovereignty over its territory when the Germans in Johnson vs. Eisentrager were captured there, and expressly permitted U.S. authorities to proceed. They also note that the Germans at least had a military tribunal, which may meet the requirements of the third Geneva Convention. The Guantanamo Bay prisoners have had no such tribunal, so they have had no opportunity to argue that they are, for example, foreign soldiers covered by the Geneva Convention who cannot be compelled to give any information but name, rank and serial number.

USC law professor Erwin Chemerinsky, who joined other scholars and members of the clergy in a lawsuit over the Guantanamo Bay prisoners last year, only to be rejected for lack of standing, noted that Secretary of State Colin Powell has called for a tribunal. “I take that as a really good sign,” Chemerinsky said, adding that the court’s decision to take the case also could bode well.

But for now, at least, the prisoners and their families — and U.S. citizens whose taxes support Camp X-Ray — have to take the government’s word for it when it claims that prisoners are being properly treated and that those found innocent of charges, whatever those charges may be, have been sent home.

The Supreme Court is expected to hear arguments early next year and make a ruling by July.

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