At long last, the Supreme Court will decide the fate of the six hundred not-so-POWs in Guantanamo Bay. On Tuesday, the Court heard oral arguments in Rasul v. Bush (03-334). Oyez presents the facts of the case:

Four British and Australian citizens were captured by the American military in Pakistan or Afghanistan during the United States' War on Terror. The four men were transported to the American military base in Guantanamo Bay, Cuba. When their families learned of the arrests, they filed suit in federal district court seeking a writ of habeas corpus that would declare the detention unconstitutional. They claimed that the government's decision to deny the men access to attorneys and to hold them indefinitely without access to a court violated the Fifth Amendment's Due Process clause. The government countered that the federal courts had no jurisdiction to hear the case because the prisoners were not American citizens and were being held in territory over which the United States did not have sovereignty (the Guantanamo Bay base was leased from Cuba indefinitely in 1903, and Cuba retains "ultimate sovereignty").

The district court agreed with the government, dismissing the case because it found that it did not have jurisdiction. The U.S. Court of Appeals for the District of Columbia affirmed the district court's decision.

Few people agree with the assertion that the Guantanamo Bay facility is not under ultimate U.S. control. "Cuban law has never had any application inside that base. A stamp with Fidel Castro's picture on it wouldn't get a letter off the base," said John Gibbons, the attorney for the detainees.

At issue is not only the jurisdiction of U.S. courts, but also the powers of the executive. President Bush has issued dozens of executive orders -- which have the same effect as law passed by Congress and signed by the president -- that would not have been issued in peacetime. He and the rest of his administration maintain that, during wartime, the executive is granted some kind of special powers to protect the country. One of these is the denial of the writ of habeas corpus to the Guantanamo detainees. Habeas corpus is granted to determine whether or not a person has been lawfully jailed. Its purpose is to prevent people from being jailed indefinitely without ever being charged, which is theoretically what could happen to prisoners at Camp X-Ray. Since they are not U.S. citizens, the administration maintains that they have no right to a writ of habeas corpus.

President Bush has pressed for a lot of powers that are not constitutionally mandated. Talk about activism? The doctrine that the executive somehow has more powers during war than during peace appears nowhere in the Constitution: it was created by the Bush Administration to justify its gross abuse of its powers. Justice Steven Breyer reminded us that if there were no way to check the administration's actions, "the executive would be free to do whatever they [sic] want."

Crucial to the outcome of this case is the federal habeas corpus law. The wording of the law does not make a distinction between citizens or non-citizens; it only mentions any person under U.S. authority. "If this had been a [U.S.] citizen held in Guantanamo, that habeas would be available. But the statute doesn't talk about citizens. It says prisoners held under the authority of the United States. Now, if the citizen can say that he is a prisoner held under the authority of the U.S. in Guantanamo, why couldn't a non-citizen under the statute say the same thing?" said Justice Anthony Kennedy.

U.S. Solicitor General Theodore Olson attempted to cite the 1950 case Johnson v. Eisentrager as precedent. The case involved captured German spies who requested habeas corpus but were denied it. Justice Sandra Day O'Connor was unreceptive to this argument, noting that the men in the Eisentrager case had already been tried and convicted by military tribunals. The prisoners at Guantanamo Bay haven't even been charged, let alone tried.

If the executive is given special powers during war, then what is the source of these laws? And can the executive make up laws out of thin air in the name of "national security"? We have already seen him take rights away from two actual American citizens -- most notably, Juan Padilla -- and the Supreme Court has already ruled that he cannot do that. Hopefully they will realize that the reasons for the six hundred detainees' detention is something that should be reviewed, not in the name of national security, but in the name of preventing any more tyranny from coming from the White House.

Fore more information, see Joan Biskupic, "Justices Question Wartime Powers," USA Today 21 Apr. 2004: 1A; Joan Biskupic and Toni Locy, "Screening of Detainees a Key Issue," USA Today 21 Apr. 2004: 3A; Linda Greenhouse, "Supreme Court Hears the Case of Guantanamo," The New York Times 21 Apr. 2004: 1A. (No links are provided because NYT requires a free sign-up and links would be useless to those without an account; also, if you want articles older than a week, you typically have to pay a small fee.)