In the first test of President Bush’s foreign policies adopted after September 11, 2001 US Supreme Court justices appear to be divided on the question of whether Guantanamo Bay prisoners can challenge their detention through the US legal system.

U.S. Supreme Court justices on Tuesday questioned the Bush administration’s argument that foreigners captured during its war on terrorism can be held at a U.S. military base in Cuba without any access to American courts.

Several justices stressed they were only considering whether U.S. courts have jurisdiction, not the merits of the claims by prisoners, who say they are innocent and have been held illegally in violation of their civil rights.

U.S. Solicitor General Theodore Olson defended the Bush administration’s controversial policy, which has come under attack by civil liberties and human rights groups.

John Gibbons, representing the detainees, said the United States had created “a lawless enclave” at Guantanamo. About 595 foreign nationals, designated “enemy combatants,” are being held at the base as suspected al Qaeda members or Taliban fighters.

“What’s at stake in the case is the authority of the federal courts to uphold the rule of law,” Gibbons, a retired judge, said in beginning his arguments in the historic case.

Olson, the government’s top courtroom lawyer, replied the federal habeas corpus law that allows prisoners to challenge their detention does not apply to the Guantanamo detainees.

He argued that Cuba, under a lease with the United States concerning the base, has ultimate sovereignty and that places the detainees beyond the control of U.S. courts.

Most of those held at the base were seized during the U.S.-led campaign against the Taliban government in Afghanistan and against Osama bin Laden’s al Qaeda network after the Sept. 11, 2001, attacks. The first detainees arrived at Guantanamo in January 2002.

The four more liberal justices sharply questioned Olson.

Scroll to Top