The U.S. Supreme Court is hearing arguments today in a court case that challenges the Bush Administration's contention that by holding suspected terrorists in prison in a foreign country the U.S. constitutional right to Habeas Corpus can be suspended.
The Bush administration has employed a dangerous suspension of constitutional rights with the Military Commissions Act of 2006 that is highly unlikely, in the view of many legal pundits, to survive a review by this court.
I agree. The American flag flies over Guantanamo Prison, and since it's a U.S. facility United States laws apply there.
Law Professor Neal Katyal believes the Supreme Court judges may not agree [with the Bush administration]: "I, like most legal observers, believe that the government will have a very tough time defending the constitutionality of a law that divests the Supreme Court of the ability to hear these cases. "
The Act was passed by the Republican Congress prior to the 2006 election.
Update: The Associated Press reports on today's hearing:
A lawyer for the detainees at Guantanamo Bay underwent a barrage of questions Wednesday from Chief Justice John Roberts and Justice Antonin Scalia, with the attorney portraying the case as a fundamental test of the U.S. system of justice.
The court plunged into the controversy over the military prison facility, where 305 prisoners are detained indefinitely in the Bush administration's war on terror.
Many of the prisoners "have been held ... for six years," attorney Seth Waxman told the justices.
Under the current system, "they have no prospect" of being able to challenge their detention in any meaningful way, said Waxman, arguing on the detainees' behalf.
Roberts and Scalia questioned whether the detainees are entitled to hearings in civilian courts.
"Show me one case" down through the centuries where circumstances similar to those at Guantanamo Bay entitled an alien to challenge his detention in civilian courts, said Scalia.
Roberts challenged Waxman's argument that the duration of detention is important.
Justice Anthony Kennedy, considered the pivotal fifth vote in the case, raised the possibility of returning the issue to the U.S. Court of Appeals for the District of Columbia Circuit, where the detainees' status as enemy combatants is undergoing a highly restrictive form of review.
Waxman argued that such a move would simply cause more delays in deciding the prisoners' fate.
Lawyers for the foreign detainees contend the courts must get involved to rein in the White House and Congress, which changed the law to keep the detainee cases out of U.S. courts after earlier Supreme Court rulings. The most recent legislation, last year's Military Commissions Act, strips federal courts of their ability to hear detainee cases.
Waxman, the top Supreme Court lawyer during the Clinton administration, said that "after six years of imprisonment without meaningful review, it is time for a court to decide the legality" of their confinement. [...]
Solicitor General Paul Clement, representing the administration, said foreigners captured and held outside the United States "have no constitutional rights to petition our courts for a writ of habeas corpus," a judicial determination of the legality of detention.
The case could turn on whether the court decides that Guantanamo is essentially U.S. soil, which would make the case for detainee rights stronger. Justice Anthony Kennedy, widely considered a pivotal vote in this case, said as much in a concurring opinion in Rasul v. Bush, the 2004 case that was the court's first foray into the administration's detention policies.
"Guantanamo Bay is in every practical respect a United States territory," Kennedy said in the earlier ruling.
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