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April 21, 2004

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The Supreme Court took up its first challenge to President Bush’s powers in executing the so-called war on terror yesterday as it weighed whether the more than 600 foreigners held at Guantanamo Bay, Cuba, have a right to plead their case before a judge.

At yesterday’s hearing, a majority of the justices sounded skeptical of the administration’s claim that the president alone has control over the fate of the Guantanamo prisoners. It was the first of three cases to be heard this month that will test whether the president can label certain prisoners as "unlawful enemy combatants" and deny them all rights under the law. Next week, the court will consider whether the president can order the military to capture and hold without a trial two U.S. citizens who he says are enemy fighters. One of them was captured in Afghanistan, the other was arrested in Chicago.

Yesterday’s argument focused on foreigners who were picked up in Afghanistan or Pakistan in 2001 and shipped to the U.S. Naval Base in occupied Guantanamo, Cuba. They have been held in solitary confinement and questioned repeatedly. They have been denied the right to speak with their families or lawyers, and they have not had a formal hearing at which they could challenge the basis for being held. The administration has maintained that these Guantanamo detainees do not deserve to be treated as prisoners of war under the Geneva Convention, since they did not fight as soldiers in a conventional army.

At the hearing, retired Judge John Gibbons argued on behalf of the Guantanamo detainees. U.S. Solicitor General Ted Olson defended the Bush administration. A decision is expected in late June. In a rare move, the Supreme Court released the audio recording of yesterday’s hearing.

Excerpts of Supreme Court hearing:

• Attorney John Gibbons, opening remarks before the Supreme Court.
• Solicitor General Theodore Olson, arguing on behalf of the U.S. Government. Opening remarks before the Supreme Court and questioned Justice John Paul Stephens.
• Attorney John Gibbons argues whether the U.S. courts had jurisdicaiton over detainees being held at Guantanamo Bay, the U.S. naval base located on the island Cuba.
• Supreme Court Justice Stephen Bryer takes issue with the government’s claim that the executive body could detain individuals with no judicial oversight. His comments are followed by a rebuttal from Olson and questions from Justices Antonin Scalia and Ruth Bader Ginsberg.

• Michael Ratner, president of the Center for Constitutional Rights.