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Executive privilege

America's reputation is staked in a case before the Supreme Court, which will decide if the executive branch has sole jurisdiction over detainees at Guantanamo Bay.

The U.S. Supreme Court waded into the war on terrorism this week when it heard arguments in two combined cases testing the extent of executive-branch power to imprison foreigners suspected of being enemies of the state. The justices are expected to decide by summer whether the alleged Taliban and al-Qaida prisoners being detained at the U.S. Naval base in Guantanamo Bay, Cuba, are foreclosed from using the courts to challenge the legality of their confinement. The families of the 16 detainees represented in the suit all say their relatives were mistakenly imprisoned and are not combatants.

The administration argues that the 600 or so Guantanamo detainees, who are foreign nationals from dozens of countries and were captured during the hostilities in Afghanistan and Pakistan, are under the sole jurisdiction of the executive branch and may be held indefinitely, incommunicado and under any conditions it chooses. If the high court adopts the Bush administration's position, the judicial branch would have no role in overseeing the activities at Guantanamo. The base would become a "lawless enclave," as attorneys for the prisoners' families assert.

It is not an exaggeration to say that this case ranks as one of the most important of this generation. Arbitrary imprisonment by U.S. officials should never be countenanced.

The administration makes two arguments to support its contention. First, it says, a World War II-era case established that foreign nationals held by the United States overseas have no right to habeas corpus. The writ of habeas corpus was enshrined in the original Constitution and guarantees persons the right to challenge the legality of their incarceration.

The administration is referring to the case of Johnson vs. Eisentrager, which involved German civilians who were spying for Japan. In 1950, the high court ruled that no American court could entertain their habeas petition, because they were held on foreign soil.

Second, the administration claims that Guantanamo Bay is not under complete U.S. control despite a perpetual lease with Cuba.

Both arguments are unpersuasive. John Gibbons, a retired federal judge who argued on behalf of the detainees, countered that the court in Eisentrager did not summarily close the courthouse door but in fact considered the merits of the case, finding that the German spies had already received due process through a military trial. The Guantanamo detainees have not been given any formal opportunity to make the case that they were were wrongly imprisoned. Gibbons also maintained that Guantanamo Bay is functionally part of the United States. "Cuban law has never had any application inside that base," Gibbons said to a challenge by Chief Justice William Rehnquist. "A stamp with Fidel Castro's picture on it wouldn't get a letter off the base."

Court watchers know to listen closely to the questions of Justices Sandra Day O'Connor and Anthony Kennedy, who are considered relative centrists on the court. O'Connor seemed especially skeptical of the Bush administration's stance.

On her vote may hinge America's reputation as a nation committed to the rule of law. This is a case being followed by Muslims around the world, looking to see if our country's promises of equal and impartial justice are real. Justice Stephen Breyer may have said it best when he told the solicitor general: "It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want."