When the Supreme Court hears oral argument on April 20 in the cases brought by two groups of Guantánamo detainees, the proceedings will provide a curious counterpoint to the ongoing hearings before the National Commission on Terrorist Attacks Upon the United States (the 9/11 Commission). The latter has become a chronicle of institutional lethargy and dysfunction; the former presents a tale of excessive zeal.

Together they portray a government whose energy has been directed at rounding up the usual suspects, rather than doing the hard and sustained work of identifying and apprehending the real culprits.

How do we tell who is a terrorist and who is an innocent bystander, swept up in the dragnet without justification? In our system, we tell the difference by submitting the matter to review by an impartial arbiter. Before a person is subjected to extended incarceration we look to the courts to conduct an examination to determine whether the facts and circumstances warrant the deprivation of liberty. That examination is what the government is seeking to prevent.

It is six decades since our government last urged the Court to uphold the mass detention of thousands of people without trial, without term, and without any opportunity to seek relief. In Korematsu v. United States (1944), the Court upheld the internment of many thousands of loyal Japanese Americans based solely on the ipse dixit of a government official, without undertaking any independent review. That decision, long since repudiated by modern jurists, teaches us how vital it is that the courts require the government to show, at the very least, what Dean Rostow called "an intelligible relationship between means and ends."

The question presented by the present cases (in which Mr. Korematsu has filed an amicus curiae brief) is whether the courts of the United States have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantánamo Bay Naval Base.

The petitioners, Shafiq Rasul and Fawzi Khalid Abdullah Fahad Al Odah, are among the 650 suspected terrorists who have been held incommunicado at Guantánamo for over two years. With a handful of exceptions, the detainees have not been informed of any charges against them or permitted to meet with counsel or family members. Not one has been granted the hearing before a "competent tribunal" to which prisoners are entitled under Article 5 of the Third Geneva Convention to determine whether they should be recognized as prisoners of war.

Thousands of such status hearings were held in Vietnam and during the first Iraq War. Over 100 have taken place during the present conflict—in a theater of actual combat. Yet the government claims that to accord such hearings to the prisoners thousands of miles away at Guantánamo would interfere with field operations. It proposes instead to conduct its own annual review of the circumstances under which the prisoners are detained. (It has also bowed to pressure to repatriate a small number of prisoners from certain allied nations, though this has only reinforced the view abroad that America’s handling of these cases is driven by political, rather than legal, considerations.)

The government’s failure to abide by its obligations under the Geneva Convention is dangerous and shortsighted. Indeed, a group of retired senior JAG officers has submitted a brief in the cases, arguing that the behavior of the United States undermines the reciprocity on which the international rule of law depends and puts at risk American service members who are captured behind enemy lines.

The government’s position on the question before the Court is no less extreme. Governments have always argued that the courts should give deference to the judgments of the Executive Branch in times of crisis. Indeed, few would disagree with that proposition, though they may differ as to how much deference is appropriate. But the Bush Administration isn’t asking for deference. It asserts that the courts lack the authority to hear these cases at all. It claims carte blanche to imprison indefinitely hundreds of foreign nationals, including citizens of friendly nations, on territory under the sole jurisdiction and control of the United States, and to do with them as it wishes. (This is not hyperbole: during oral argument before the Ninth Circuit in a third proceeding, the Gherebi case, the government acknowledged that its position would place the detainees beyond the reach of the law even if they were being tortured or summarily executed.)

The government has spirited these prisoners off to the one place on earth—a terra nullius, a legal "no man’s land," in which it hopes that they will be beyond the capacity of any court to offer them relief. The question for the Court is whether it will allow the government to have it both ways—to exercise effective sovereignty over Guantánamo through unilateral executive action, while disclaiming formal sovereignty for the purpose of evading the jurisdiction of the federal courts.

It is undisputed that the base at Guantánamo remains subject to Cuban sovereignty. It is equally clear that the United States has exclusive jurisdiction and control over the territory, and that the perpetual lease granted in 1903 cannot be terminated without American consent. In 1912, the State Department Solicitor concluded that the U.S. is the "pro tanto sovereign". In 1953, Rear Admiral Marion E. Murphy, the commandant of Guantánamo, wrote, "Cuban sovereignty is interrupted during the period of our occupancy, since we exercise complete jurisdiction and control . . . [with] the essential elements of sovereignty." In 1982, then-Assistant Attorney General Ted Olson (who will argue the Guantánamo cases for the government) issued an opinion concluding that Guantánamo falls within "exclusive United States’ jurisdiction . . . because of the lease terms which grant the United States ‘complete jurisdiction and control over’ that property." The government has the power of eminent domain at Guantánamo, and Congress has extended a host of U.S. statutes to the base—even animals on Guantánamo are protected by the Endangered Species Act. The Navy’s website advertises that the base is "for all practical purposes . . . American territory" and "has for approximately [100] years exercised the essential elements of sovereignty over this territory, without actually owning it." In every meaningful sense, Guantánamo is U.S. territory.

Nevertheless, the government insists that without formal sovereignty, U.S. courts have no jurisdiction over the detainees. In support of its claim, the government relies on a single case which it argues should control the present situation, the 1950 case of Johnson v. Eisentrager.

That case involved 21 German nationals who had aided Japanese forces fighting the Americans in occupied China during the Second World War. They were captured, tried by U.S. military commissions in Nanking, convicted of violating the laws of war, and transferred to the Landsberg prison in Germany. The prisoners sought a writ of habeas corpus in the U.S. courts, claiming that the commissions had tried them without proper authority. The Supreme Court rejected their petition because they were enemy aliens who at no relevant time were within the territorial jurisdiction of the courts of the United States.

There are a number of critical differences between that case and the present ones. In Eisentrager, the prisoners were citizens not of such friendly nations as England, Australia, and Kuwait, but of Nazi Germany, a nation in a formal state of war with the United States. Unlike the base at Guantánamo, the Landsberg prison was not "for all practical purposes American territory," but a facility briefly under the control of an occupying power.

Unlike the prisoners at Guantánamo, the Eisentrager defendants were formally charged, represented by counsel, and tried before a duly constituted military commission. Their convictions were reviewed and upheld. The petitioners did not allege that they were innocent or had been denied basic procedural rights.

In short, Eisentrager stands for the proposition that enemy aliens who have been tried and convicted overseas by a duly constituted military tribunal—who, in effect, had had their due process—are not entitled to a second bite at the apple by having their convictions reviewed in U.S. civil courts.

The government’s attempt to extend the reach of that decision to the very different facts at issue in the Guantánamo cases is unpersuasive. Its insistence on a technical definition of sovereignty is strained. As Justice Jackson, the author of the Eisentrager decision, wrote a few years later, "Under the best tradition of Anglo-American law, courts will not deny a hearing to an unconvicted prisoner just because he is an alien whose keep, in legal theory, is just outside our gates."

The courts are our guarantors of liberty, even in time of war. In 1807, Chief Judge William Cranch wrote: "[W]hen the public mind is agitated, when wars, and rumors of wars, plots, conspiracies and treasons excite or alarm, it is the duty of a court to be peculiarly watchful. . . . The Constitution was made for times of commotion. In the calm of peace and prosperity, there is seldom great injustice. Dangerous precedents occur in dangerous times. It then becomes the duty of the judiciary calmly to poise the scales of justice, unmoved by the arm of power, undisturbed by the clamor of the multitude."

Mark Agrast is Senior Vice President for Domestic Policy at the Center for American Progress.




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