ANALYSIS: Supreme Court to take most important look yet at Guantanamo

Dec 4, 2007, 21:55 GMT

Washington - The latest case before the US Supreme Court is not just about the future of terrorism suspects held for years at Guantanamo Bay in Cuba.

Rights activists say it goes to the very heart of the judiciary's role in a time of war.

For the third time in three years, justices from the highest US court will hear cases Wednesday that challenge the government's right to hold detainees without granting them access to US courts. Arguments will be heard in two separate cases brought by detainees held at Guantanamo.

The Supreme Court has already twice struck down one branch of government - ruling in 2004 and 2006 against attempts by President George W Bush's administration to bar terrorism suspects from challenging their detentions in federal court. But the last ruling didn't strike down the policy itself - it ordered Bush to get legislative approval.

Now the court has its sights set on Congress, which approved Bush's detention policies soon after the Supreme Court's last ruling, turning this case into a classic showdown over the powers of lawmakers and the powers of the courts.

'The courts were put here by the founders' of the United States, said Shane Kadidal, a lawyer for the Center for Constitutional Rights which represents more than 200 detainees. 'This case is really about the ability of the courts to check the political branches.'

While the target may have changed from the executive to the legislative branch, the issue before the court remains the same. From the very beginning, Guantanamo cases have centred on the right of habeus corpus, a legal term that stems from the Middle Ages and allows anyone to challenge their detention before a court.

Suspected terrorists, deemed 'enemy combatants,' have been barred from taking their case to US federal court on the grounds that they are foreign nationals, held in a time of war outside of the United States. Courts have been substituted with military tribunals, which Congress approved but human rights activists have derided as a sham process.

Lawyers for detainees argue that Guantanamo is as much a part of US territory as prisons in the United States itself, and that in any case the war on terrorism should not be a pretext for stripping detainees of their judicial rights.

'In many ways the United States exercises more control over Guantanamo than over Iowa,' Jonathan Hafetz, a lawyer from the Brennan Center for Justice, told reporters last week. 'Even a state of war is not a blank cheque.'

The Supreme Court ruling, expected some time in the spring next year, will have 'enormous' implications for the future of US-held terrorism suspects, according to Jennifer Daskal, senior counter- terrorism counsel at Human Rights Watch. More than 300 detainees are still being held at Guantanamo. About 80 are expected to be brought before military tribunals.

'The reality is very clear and has been admitted by the military that many of them are never going to be charged,' Kadidal said. He hopes that will weigh on the minds of the Supreme Court's nine justices.

The two cases before the Supreme Court Wednesday are Boumediene v. Bush and Al Odah v. the United States.