Some experts are surprised that the Supreme Court decided to review whether the 660 prisoners being held by the U.S. at the Guantanamo Naval Base in Cuba have the right to complain to American courts about their treatment. The Washington Post notes that lower courts said the issue had been settled by a 1950 Supreme Court ruling in which the court denied a habeas corpus writ to German espionage agents captured by U.S. forces in China in 1945 and later jailed in occupied Germany. Constitutional guarantees of due process do not extend to every place where people are held by U.S. authorities, the lower courts said.
Attorneys for the Guantanamo detainees say the 1950 case differed because the Germans had been convicted by a military commission; today’s alleged terrorists have faced no legal process.
The high court’s decision to review the Guantanamo cases, which required the votes of at least four justices, was not a sure thing because there was no conflict among lower courts and because that the court previously declined to hear two other terrorism-related cases.
“Either a majority of the court feels that the law is so clear that it wants to tell the world in no uncertain terms that President Bush is acting within the law, or four members of the court really do question the outcome in the lower courts and want to give it a good, hard look,” said Michael J. Glennon of Tufts University’s Fletcher School of Law and Diplomacy. The cases will be argued early next year and decided by July.