Supreme court ponders rights of Guantánamo detainees

America's highest court yesterday held what is expected to be the pivotal case on the future of the US prison camp at Guantánamo Bay, Cuba, where more than 300 foreigners accused of being terrorists are detained.

The supreme court judges listened to arguments from the Bush administration and lawyers representing the detainees. They pressed the solicitor general, Paul Clement, to justify the denial of habeas corpus to the detainees, most of whom have been held for six years without a chance of putting their case in court.

The court addressed a single issue: "The privilege of the right of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it." Habeas corpus guarantees US citizens the right to plead in court inside a limited period, unlike the non-Americans at Guantánamo.

Congress, at the request of the Bush administration, pushed through legislation stripping the detainess of the right of habeas corpus. The judges yesterday focused on the failure of Congress to provide alternatives for the detainees.

The judges are not expected to issue their ruling until next June. The court has twice before ruled against the Bush administration on the issue, resulting in the White House changing the law. A third ruling could hasten closure of the camp, allow the detainees to be tried in a US civilian court, or return the issue to the US court of appeal, any of which would be a victory for the detainees' lawyers.

One of the lawyers for the detainees, Seth Waxman, said US law should cover Guantánamo too. "If our law doesn't apply, this is a law-free zone," Waxman told the court. "After six years of imprisonment without meaningful review it is time for a court to decide the legality [of their confinement]." Clement countered by arguing that the prisoners had more rights now than under the original habeas corpus law of 1789.

The supreme court is finely balanced between rightwingers and a mixture of liberals and moderate conservatives, with Justice Anthony Kennedy often holding the decisive vote. He has said before that US law should cover Guantánamo.

Chief Justice John Roberts and Justice Antonin Scalia, who usually take the conservative side, asked Waxman why the detainees should be entitled to hearings in civilian courts. Scalia said "show me one case" down through the centuries where circumstances similar to those at Guantánamo Bay entitled an alien to challenge his detention in civilian courts.

However most questions from the judges seemed to accept that the detainees had some rights, and focused on whether the procedures in place were adequate.