The New York Times
April 19, 2004

The Court and Guantanamo

The Supreme Court will hear a pair of cases tomorrow that will help s=
et the
ground rules for the war on terror. Detainees at Guant=E1namo, some o=
f whom
have been held for more than two years, are seeking an opportunity to
challenge their confinement. The Bush administration insists, however=
, that
they can be imprisoned indefinitely. That position is legally and mor=
ally
wrong, and rather than help America's defense, it makes the nation mo=
re
vulnerable. The Supreme Court should rule for the detainees.

More than 600 detainees are being held in the American military base =
at
Guant=E1namo Bay, Cuba. Most were captured in Afghanistan while Ameri=
can
troops were fighting the Taliban forces there. Their advocates say ma=
ny were
simply in the wrong place at the wrong time, or innocent men whom bou=
nty
hunters handed over as terrorists in order to claim rewards. The case=
s the
court is hearing involve Kuwaiti, British and Australian nationals wh=
ose
families say they were not involved with Al Qaeda or engaged in milit=
ary
action against the United States.

The detainees are seeking only the most basic elements of due process=
: to be
informed of the charges against them, to meet with their families and
lawyers, and to have a forum for contesting their imprisonment. They =
do not
claim a right to have the American court systems review their cases. =
A
military tribunal would be sufficient.

The administration argues that as noncitizens being held outside the =
United
States, the detainees have no right to be heard in federal court. But=
 the
law gives the courts jurisdiction over "all civil actions arising und=
er the
Constitution, laws, or treaties of the United States," which certainl=
y
describes these cases. The federal habeas corpus statute also gives a=
nyone
held by the government, which the detainees certainly are, the right =
to
challenge their confinement. Even if the government's narrow view of
jurisdiction were right, it is irrelevant. Guant=E1namo, as the Navy =
concedes
on its own Web site, "for all practical purposes, is American territo=
ry."

International law also strongly supports the detainees. The Internati=
onal
Covenant on Civil and Political Rights, following American and Britis=
h legal
traditions, states that "anyone who is deprived of his liberty by arr=
est or
detention shall be entitled to take proceedings before a court."

Legal arguments aside, the Guant=E1namo policies are a tragic mistake=
. They
are being followed closely abroad, where they are greatly harming Ame=
rica's
reputation for fairness. And =97 as a group of retired American milit=
ary
officers argue in a friend-of-the-court brief =97 they will come back=
 to haunt
us when Americans are taken captive.

Most important of all, the treatment of the Guant=E1namo detainees is=
 not true
to America's guiding principles. "The practice of arbitrary imprisonm=
ents,"
Alexander Hamilton observed in Federalist No. 84, has been "in all ag=
es" one
of "the favorite and most formidable instruments of tyranny." Much ha=
s
changed since Sept. 11, 2001, but one thing that has not is this nati=
on's
commitment to freedom, and to the rule of law.

Copyright 2004 The New York Times Company

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