BY DALE MILLS
The November 11 decision by the US Supreme Court to hear a legal challenge to the detention of some of the prisoners in Washington's off-shore Camp-X prison has set the stage for a showdown between the courts and the US administration. Australians David Hicks and Mahmoud Habib are among those detainees represented in the case.
Camp X-Ray is located at the US base in Guantanamo Bay, Cuba. The prisoners — all non-US citizens, mostly captured during the US-led war in Afghanistan — have not been charged with any crime in civil courts. Washington has denied them both the rights accorded to prisoners in the criminal system, and those guaranteed to prisoners of war under the Geneva Convention. Instead the US government has invented a new classification of "unlawful combatants", who it argues deserve no human-rights guarantees.
US President George Bush has argued that the detention of the men in US-occupied Cuba is purely a matter for his administration. Now, the US Supreme Court will decide whether that is so, setting the stage for a possible historic clash between the two arms of government.
The court will only decide, for the moment, whether it has jurisdiction to hear the matter in the first place, and not the merits or otherwise of the detentions.
"It is for the courts and not the executive to determine whether executive action is subject to judicial review", the appeal said.
Although some 650 men are still detained in Guantanamo, the appeals are confined to 12 Kuwaitis, two Britons and the two Australians. All of the men challenging their detention have been held in custody for more than 18 months without charge.
Previously, the US courts have ruled that a 1950 decision, Johnson v Eisentrager, still applied: this involved two Nazi intelligence agents who were captured by the US in China. The case said that non-US citizens did not have access to US courts if they were detained outside the USA.
One of the legal arguments is that Guantanamo Bay, while clearly part of Cuba, is, in effect, US territory. The US base at Guantanamo is a result of the Platt amendment, written into the Cuban constitution at US insistence in 1903, which specified that "Cuba will sell or lease to the United States land necessary for coaling or naval stations".
The terms of the resulting "lease" state that it can only be ended by mutual consent of Cuba and the US. Despite repeated requests from the Cuban government for the US to leave Guantanamo, Washington refuses to do so. Cuba regards the base as an illegal occupation. The US maintains complete control over the territory.
The characterisation of Guantanamo Bay is important because if the detained men were inside US territory for legal purposes, then they would have access to US civilian courts.
In response to the US Supreme Court decision, Australian attorney-general Philip Ruddock took a "hands off" approach. In an interview with CNN On November 11, he said: "The jurisdiction here is with the United States. It's not ours and we don't seek to overturn United States sovereignty in relation to those matters."
Ruddock also acknowledged that, even if Washington's allegations about the Hicks and Habib's pro-al Qaeda activities were true, "We don't believe there are offences that would be other than retrospective to which they could be charged in Australia. So, we certainly haven't sought to have them returned to Australia in expectation that we would be able to charge them." Ruddock also cited the example of France, which he clearly envies, where people can be detained for three years without charge.
The appeals will be held in March, and a decision is expected a month or so after that. Given that Bush's 2000 election was ensured by a controversial Supreme Court vote, the detainees' lawyers are not optimistic, although they remain hopeful.
From Â鶹´«Ã½ Weekly, November 19, 2003.
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