Detainees at Guantanamo
deserve hearings


The U.S. Supreme Court is considering lawsuits challenging the American detention of alleged terrorists captured in South Asia and denied legal hearings.

THE Bill of Rights applies not only to U.S. citizens but to all "persons," but the Bush administration insists that it can imprison "enemy combatants" at the Guantanamo Bay naval base in Cuba without affording them constitutional protections. The government's lawyers defended the incarceration yesterday before the U.S. Supreme Court, but it should be rejected as a violation of fundamental liberty.

The United States has apologized for the detention of Americans of Japanese descent during World War II. As a result, Congress in 1971 enacted a law barring detention of any citizen by the executive branch without statutory authorization. The imprisonment at Guantanamo of about 600 persons from more than 40 nations with no showing of terrorist connections is no less shameful. Many deny any ties to al-Qaida but say they were caught up in the American roundup in Afghanistan and Pakistan more than two years ago.

The arguments before the high court were narrow, pertaining only to whether U.S. courts have jurisdiction over detentions on foreign soil. The contention that Guantanamo Bay is sovereign to Cuba is dubious. Guantanamo was Spanish territory when the United States seized it in 1898, and Cuba was coerced into leasing it to the United States upon gaining independence from Spain. It is, in essence, American soil that never has been under Cuban control.

"If one of the detainees here assaulted another detainee in Guantanamo, there's no question they'd be prosecuted under American law," noted John Gibbons, a lawyer for the prisoners, "because no other law applies there." He added that "a stamp with Fidel Castro's picture on it wouldn't get a letter off the base."

Solicitor General Theodore B. Olson argued to the Supreme Court that the government's actions in Guantanamo are immune from American courts because of the president's need "to use all necessary and appropriate force to deter and prevent acts of terrorism against the United States." Lower courts have agreed.

Olson relies on a 1950 Supreme Court decision that constitutional rights do not apply to enemy aliens detained on foreign soil. However, the plaintiff in that case -- a German officer in charge of World War II espionage in the Far East -- had received a fair hearing before an American military commission before being convicted of war crimes. The commission was no Star Chamber; six other Germans won acquittals.

Such a hearing -- not necessarily in the U.S. court system -- is all that is being sought by the two Britons, two Australians and 12 Kuwaitees who are plaintiffs in the current case. Continuing to deny them a hearing not only strips them of constitutional protection, but undermines the U.S. role of champion of human rights.



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