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| Guantanamo legal showdown begins | |
| (about 4 hours later) | |
| The US Supreme Court is deciding whether inmates at Guantanamo Bay camp should have the right to contest their detention in US civilian courts. | |
| Two cases challenge the removal by Congress of the "habeas corpus" right of detainees under the US constitution to be heard by an independent judge. | |
| If the court rules in their favour, indefinite detention under military control could be declared unlawful. | If the court rules in their favour, indefinite detention under military control could be declared unlawful. |
| The court's judges have ruled against the US government in two earlier cases. | The court's judges have ruled against the US government in two earlier cases. |
| The founders of our nation created a constitution dedicated to the protection of liberty, not one that turns a blind eye to indefinite detention Seth Waxman,lawyer representing detainees Supreme Court showdown | The founders of our nation created a constitution dedicated to the protection of liberty, not one that turns a blind eye to indefinite detention Seth Waxman,lawyer representing detainees Supreme Court showdown |
| The first concerned the status of Guantanamo Bay in relation to US territory. | The first concerned the status of Guantanamo Bay in relation to US territory. |
| In 2004, the judges found that existing law gave federal courts the right to consider challenges to the legality of the detention of foreign nationals held at Guantanamo Bay because of the unique control the US government had over the land leased from Cuba. | In 2004, the judges found that existing law gave federal courts the right to consider challenges to the legality of the detention of foreign nationals held at Guantanamo Bay because of the unique control the US government had over the land leased from Cuba. |
| Two years later, it ruled that the president did not have the authority to order the "enemy combatants" there to face military commissions. | Two years later, it ruled that the president did not have the authority to order the "enemy combatants" there to face military commissions. |
| The government responded both times by obtaining Congressional legislation restricting judicial review of the detentions. | The government responded both times by obtaining Congressional legislation restricting judicial review of the detentions. |
| The Military Commissions Act (MCA) passed in 2006 removed the right of habeas corpus and set up commissions to try detainees who were not US citizens. | The Military Commissions Act (MCA) passed in 2006 removed the right of habeas corpus and set up commissions to try detainees who were not US citizens. |
| 'Unconstitutional' | 'Unconstitutional' |
| Now the two test cases challenging the MCA brought by Lakhdar Boumediene, an Algerian arrested in Bosnia in 2001, and Fawzi al-Odah, a Kuwaiti seized in Pakistan in 2002, have been consolidated into one and brought on behalf of 37 foreign nationals who remain among the 305 detainees at Guantanamo Bay. | Now the two test cases challenging the MCA brought by Lakhdar Boumediene, an Algerian arrested in Bosnia in 2001, and Fawzi al-Odah, a Kuwaiti seized in Pakistan in 2002, have been consolidated into one and brought on behalf of 37 foreign nationals who remain among the 305 detainees at Guantanamo Bay. |
| The detainees now enjoy greater procedural protections and statutory rights to challenge their wartime detentions than any other captured enemy combatants in the history of war Paul ClementUS Solicitor-General Detainees' profilesQuick guide: Guantanamo | The detainees now enjoy greater procedural protections and statutory rights to challenge their wartime detentions than any other captured enemy combatants in the history of war Paul ClementUS Solicitor-General Detainees' profilesQuick guide: Guantanamo |
| Their lawyers argue that habeas corpus should extend to the facility even though it is technically not US sovereign territory. | Their lawyers argue that habeas corpus should extend to the facility even though it is technically not US sovereign territory. |
| "The founders of our nation created a constitution dedicated to the protection of liberty, not one that turns a blind eye to indefinite detention without a meaningful opportunity to be heard," one of the lawyers said in a brief on their behalf. | "The founders of our nation created a constitution dedicated to the protection of liberty, not one that turns a blind eye to indefinite detention without a meaningful opportunity to be heard," one of the lawyers said in a brief on their behalf. |
| "The MCA's purported repeal of habeas is unconstitutional," he said. | "The MCA's purported repeal of habeas is unconstitutional," he said. |
| The US constitution states that habeas corpus "shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it". | The US constitution states that habeas corpus "shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it". |
| Solicitor General Paul Clement has responded by saying in his brief that the US does not own Guantanamo Bay and therefore the writ of habeas corpus does not run there. | Solicitor General Paul Clement has responded by saying in his brief that the US does not own Guantanamo Bay and therefore the writ of habeas corpus does not run there. |
| A decision by the Supreme Court is expected by the summer | A decision by the Supreme Court is expected by the summer |
| "As aliens held outside the sovereign territory of the United States, petitioners do not enjoy any rights," he said. | "As aliens held outside the sovereign territory of the United States, petitioners do not enjoy any rights," he said. |
| "The Military Commissions Act of 2006 validly divested the District Court of jurisdiction over petitioners' habeas corpus petitions." | "The Military Commissions Act of 2006 validly divested the District Court of jurisdiction over petitioners' habeas corpus petitions." |
| Mr Clement also argued that the military Combatant Status Review Tribunals provided an adequate substitute for habeas proceedings. | Mr Clement also argued that the military Combatant Status Review Tribunals provided an adequate substitute for habeas proceedings. |
| "The detainees now enjoy greater procedural protections and statutory rights to challenge their wartime detentions than any other captured enemy combatants in the history of war," he said. "Yet they claim an entitlement to more." | "The detainees now enjoy greater procedural protections and statutory rights to challenge their wartime detentions than any other captured enemy combatants in the history of war," he said. "Yet they claim an entitlement to more." |
| Both sides' arguments will be heard in a one-hour session expected to begin at 1000 (1500 GMT) on Wednesday. A decision is expected by next summer. | Both sides' arguments will be heard in a one-hour session expected to begin at 1000 (1500 GMT) on Wednesday. A decision is expected by next summer. |
| 'Traumatising' | 'Traumatising' |
| Ahead of the hearing, Capt James Yee, a US Army Muslim chaplain assigned to Guantanamo Bay between 2002 to 2003 who was accused and then cleared of espionage, told the BBC that the lack of due process and indefinite detention was taking a serious toll on the prisoners there. | Ahead of the hearing, Capt James Yee, a US Army Muslim chaplain assigned to Guantanamo Bay between 2002 to 2003 who was accused and then cleared of espionage, told the BBC that the lack of due process and indefinite detention was taking a serious toll on the prisoners there. |
| "I think... many of these prisoners are perhaps losing hope in the entire situation. Already we've seen four prisoners in the last two years commit suicide," he told the World Today. | "I think... many of these prisoners are perhaps losing hope in the entire situation. Already we've seen four prisoners in the last two years commit suicide," he told the World Today. |
| Capt Yee, who spent 76 days in solitary confinement before all charges against him were dropped and he was given an honourable discharge, said all of the detainees would be scarred for life by their experience at Guantanamo. | Capt Yee, who spent 76 days in solitary confinement before all charges against him were dropped and he was given an honourable discharge, said all of the detainees would be scarred for life by their experience at Guantanamo. |
| "My own personal experience... was traumatising not only to me but also my family," he said. | "My own personal experience... was traumatising not only to me but also my family," he said. |
| However, the former chaplain said he doubted that many of the detainees would be aware of the significance of the Supreme Court hearing and therefore would not have had their hopes raised. | However, the former chaplain said he doubted that many of the detainees would be aware of the significance of the Supreme Court hearing and therefore would not have had their hopes raised. |