Gitmo Bay Detainees Argument before the Supreme Court

Today the Supreme Court will hear arguments concerning the rights of detainees in Guantanmo Bay Detention Camp to challenge their continued detention by means of a petition for a writ of habeas corpus. To put this issue in perspective consider the following plausible hypothetical.

Imagine, in late 2002 you are a young Afghan male. Like most young men in war torn countries you had to choose sides, and you chose the side of the Taliban. You consider yourself a good Muslim and dislike U.S. foreign policy in the Middle East, particularly the U.S. continued support of the Israeli occupation of Palestine. Al Qaeda is an organization you know of by reputation and you’ve been told that good Muslims such as yourself generally should support it. You have been convinced that the September 11 attacks are part of a Zionist conspiracy to justify a “crusades” style occupation of Islamic countries. While on patrol you encountered a unit of US Special Forces soldiers who captured you. Within a short period of time you found yourself imprisoned in a country that you had previously never heard of, Cuba, half-way around the world. Since your arrival, five years have passed. You have had no contact, even by letter, with family or friends. One brief hearing was held regarding your case, the significance of which you did not really understand. You believe a determination was made that you were an “enemy combatant.” You’ve tried to find out when you might be released and the only answer you were given was, “When we win the war on terror.” Given the uncertainty and isolation with which you are confronted you are depressed and often contemplate some means of committing suicide.

Do you have any meaningful legal rights? Are you doomed to languish for the rest of your life as a prisoner of an undefined war with no discernible end? These are the questions that lie at the heart of the case being argued before the Supreme Court today.

In the case of Rasul v. Bush, decided in 2004, the Supreme Court held that the detainees could challenge their detention in Federal court pursuant to a petition for a writ of habeas corpus. After this decision, Congress stepped in and passed legislation intended to block the detainees’ access to Federal court.

In the case of Hamdan v. Rumsfield, decided in June 2006, the Supreme Court held the military commissions created by the Bush Administration to process the claims of the detainees was unlawful. The Court also held the Geneva Convention to be applicable. The Court did not create any immediate remedy for the detainees, however.

What the Supreme Court is unlikely to focus on in the immediate case is the practical problem created by the Guantanamo Detention Camp. There is no foreseeable end to the war of terror. Should that mean the detainees should be imprisoned for life without any meaningful trial? On the other hand, if any of the detainees happened not to be radicalized before their detention, they are almost certainly committed enemies of the United States now. How as a practical problem are they ever going to be released? Even putting the question of their future threat to the United States aside, what country is going to accept them? Naturally, the current U.S. friendly government in Afghanistan does not want responsibility for them. If they originally came from other countries such as Saudi Arabia, those countries likely will also be unwilling to accept them.

Keep an eye out for the Supreme Court’s decision sometime next year in this landmark case. I will try to fairly summarize it here for the lay reader.

Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.