Diverse litigants side with Gitmo captives

With the Supreme Court poised to decide another Guantánamo case, foreign and domestic lawyers, lawmakers, diplomats and others are filing briefs defending the rights of the captives.

09/16/2007 3:01 AM

11/24/2007 10:54 PM

With the U.S. Supreme Court set to take up Guantánamo detention policy again, the justices have received some unusual advice from a far-flung, friendly corner of the war-torn Middle East.

Israeli lawyers and military law experts filed a brief supporting Guantánamo detainees suing the Bush administration over one of its most controversial war-on-terrorism policies. They argue that the United States can safeguard national security while giving presumed dangerous captives access to U.S. courts.

Says Haifa Law Professor Emanuel Gross, a retired Israeli Army colonel and military judge who contributed to the brief: ``The issue here is, having been engulfed with terrorist activities from the beginning, from 1948, we learned a good lesson -- if you want to remain a democracy you must be willing to let them have their day in court.''

The Israelis' brief was among 19 amicus curiae petitions in the case of Boumediene v. Bush -- which will become the third Guantánamo case in four years to go before the Supreme Court.

In a stunning reversal in June, the justices agreed to hear a challenge to the indefinite-detention policy designed by the Bush administration and adopted by Congress. Detainees won their two earlier cases.

Nearly two dozen widely diverse interest groups have filed briefs siding with the prisoners -- former senior U.S. diplomats and military officers, Canadian and European lawmakers and lawyers, the federal public defender in South Florida, even Republican Sen. Arlen Specter of Pennsylvania.

They don't argue that the men are innocent but that they deserve their day in court.

The deadline to submit briefs was Aug. 24. Now the Bush administration and its supporters have until Oct. 9 to provide their briefs. Arguments are set for December.

The briefs are being written at a time of increasing discussion at the White House and in Congress about what to do with the detention and interrogation center at Guantánamo.


Also, this will be the first Guantánamo case before the U.S. Supreme Court since the resignations of two of the biggest champions of Bush administration detainee policy. Secretary of Defense Donald Rumsfeld has been replaced by Robert Gates, who has advocated closing the prison camps.

Attorney General Alberto Gonzales leaves Monday. He helped the administration sweep aside provisions of the Geneva Conventions at Guantánamo, declaring some of them ''quaint'' in a memo that critics argue enabled abusive practices.

The case is named for Lakhdar Boumediene, a 41-year-old Algerian former relief worker in Sarajevo, Bosnia and Herzegovina, who had worked for the Islamic counterpart of the Red Cross, the Red Crescent.

A father of two, Boumediene has been held at the U.S. military prison camps in Guantánamo Bay, Cuba, since January 2002 -- and been on a prison camps hunger strike since Christmas.

In this case, U.S. forces spirited Boumediene and five other men from Europe to Turkey to Guantánamo for interrogation -- after Bosnian police cleared them of plotting to blow up the U.S. Embassy in Sarajevo.

None has been charged with a crime.

All six men want to sue the U.S. administration for their freedom -- but a federal judge in Washington, D.C., threw out their cases, saying that as Guantánamo captives they were not entitled to file so-called habeas corpus petitions.

The White House argues that indefinite detention of enemy combatants -- without recourse to civilian court -- is a war-on-terrorism necessity in a new and dangerous world.

By 2006, after U.S. civil liberties lawyers filed several hundred habeas corpus petitions, the Bush administration and sympathetic lawmakers accused the prisoners and their lawyers of undermining American justice by clogging the federal docket with their cases.

The Pentagon says it now holds about 340 men as enemy combatants at Guantánamo Bay, and has service members review their cases.

But the Israeli lawyers point out that Israel's nearly 60-year-old democracy has faced an almost unrelenting history of terrorism -- and still lets dangerous captives individually challenge their detention all the way to Israel's High Court of Justice.

In response, the Israelis boast in the 104-page brief that the Israeli army seized nearly 7,000 ''suspected enemy combatants'' in the West Bank in May 2002, swiftly processed and freed more than 5,000 -- and gave the remaining 1,600 suspects access to defense counsel and independent courts within weeks.


Ever since the U.S. opened the prison camps at Guantánamo, the Bush administration has rebuffed war-on-terrorism captives' efforts to file a traditional writ asking a federal court judge to review their case.

Many have never seen an attorney, among them the 16 ''high-value'' captives, most of whom were held and interrogated for years at secret CIA ``black sites.''

Instead, the last Republican-led Congress gave an appeals court limited oversight of Pentagon panels that classify Guantánamo captives as ''enemy combatants'' -- if they have lawyers.

In contrast, said Gross, Israel must let a captive see a lawyer within 30 days -- or regularly justify an administrative detention that denies a captive rights to a civilian judge every three to six months.

Foreigners periodically file briefs with the court on international issues, said New York University law professor Stephen Schulhofer, a member of the Supreme Court Bar who filed the brief for the Israelis.

But he called ''probably unprecedented'' the number of briefs in the Boumediene case and ``level of interest from all over the world, recognizing that what the United States does to foreign nationals it captures is something that resonates around the world.''

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