The justices stated their intention to decide “whether United States courts lack jurisdiction to consider challenges to the legality of the detentions of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantánamo Naval Base” without reference to whether Guantánamo is or is not “outside the sovereign territory of the United States.” Reflecting the tension between the administration and the Supreme Court, U.S. solicitor general Theodore Olson had admonished the court that the determination of sovereignty over a particular territory is “not a question on which a court may second-guess the political branches.”

The suits ask the court to order the government to inform the prisoners of any charges against them, allow them to meet with lawyers and family members, and to obtain “access to an impartial tribunal to review whether any basis exists for their continued detentions.” The two appeals the court accepted were filed on behalf of 12 Kuwaitis in one group, and two Australians and two British citizens in the other.

Civil liberties attorneys who filed the suits also asked the court to decide whether the prisoners have the right to make use of the U.S. legal system to challenge their imprisonment. The Bush administration has maintained that the prisoners are “enemy combatants” and therefore not entitled to any of the legal protections due prisoners of war. In arguing against their appeal to the court, Olson insisted that the determination of the detainees’ status was strictly the prerogative of the administration and not the business of the federal courts.

Olson countered that lower courts had acted correctly earlier in denying a similar lawsuit, basing their decision on a 1950 ruling that German prisoners captured in World War II in China and held outside U.S. territory had no right to use the federal courts to challenge their detention or charges against them. Attorneys for the Center for Constitutional Rights (CCR), one of the groups filing the lawsuits, noted in their brief that in this case the United States “alone exercises power at Guantánamo Bay,” and that for jurisdictional purposes it should be treated as part of the United States.

The 45-square-mile area in southeastern Cuba where the U.S. base is located was seized by Washington in the Spanish-American War. The U.S. Navy has continued to occupy the area based on an agreement signed by the Cuban government at that time. CCR attorneys argue that the agreement granted Washington many of the attributes of sovereignty over the area and uses the phrase “complete jurisdiction and control.” Since the 1959 revolution that toppled the U.S.-backed dictatorship of Fulgencio Batista, the Cuban government has considered the agreement null and void and the continued presence of the U.S. base at Guantánamo as an illegal occupation of Cuban territory. Washington has maintained its base there despite the will of the Cuban people.

The prisoners in Guantánamo are from more than 40 countries. Governments in Europe, Australia, and the Middle East have been under pressure from family members and civil liberties groups to press Washington regarding their conditions of incarceration. On November 7 Paris filed a formal inquiry into the detention of six French citizens held at the military camp. And in a rare break with Washington, Spain’s foreign minister welcomed the Supreme Court decision, calling the conditions under which the prisoners are held “a major error by the United States.”

Inmates were initially held in wire cages at Camp X-Ray, an open-air, makeshift prison. In April they were moved to a more permanent jail called Camp Delta, consisting of rows of 8 by 6 foot steel cells cut from shipping containers. Each cell is fitted with a metal bed welded to the floor, a wash basin, and through-the-floor toilet. Most of the prisoners are held in their cells for at least 23 hours a day, according to the CCR. They are shackled hand and foot before being shuffled to latrines. The Pentagon has acknowledged 32 attempted suicides since January 2002.

The Bush administration has picked the first six detainees to be tried before military tribunals, including David Hicks, an Australian citizen whose name is among those for whom the lawsuit has been filed. In May, the U.S. military officer in charge of Camp Delta announced plans to conduct trials and executions on site. He also said plans under consideration included the building of a permanent jail with an execution chamber at Guantánamo.

In April military officials admitted that among the prisoners are at least three boys between the ages of 13 and 15. The youths were detained and interrogated under similar conditions as the adult prisoners—and have been cynically labeled by their captors as “juvenile enemy combatants.”  
 
 
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