US Supreme Court to hear Guantanamo detainee's case

Bosnian imprisoned without charges gets his day in court; outcome may affect detention practices.

By ARI KAPLAN
Guantanamo Bay 224.88 (photo credit: AP)
Guantanamo Bay 224.88
(photo credit: AP)
In the late 1990s, Lakhdar Boumediene left Algeria and moved to Bosnia and Herzegovina, where he became a citizen and lived with his family until his arrest in October 2001 on suspicion of plotting to attack the US Embassy in Sarajevo. Three months later, the Supreme Court of the Federation of Bosnia and Herzegovina ordered his release for lack of evidence. Upon exiting the Central Prison in Sarajevo, however, Bosnian police transferred custody to the US military, which transported him to Guantanamo, where he has been imprisoned for the last six years without formal charge. On Wednesday, his will be the third case in three years that the United States Supreme Court will be hearing about detention practices at the Guantanamo Bay Naval Base in Cuba. At its essence, Mr. Boumediene's case is about whether non-citizens can appear in federal court in Washington for a hearing to determine whether they are illegally detained. On a more general level, "it is about restraint on executive power," says Kristine A. Huskey, clinical professor and Director of the National Security & Human Rights Clinic at the University of Texas School of Law in Austin. She was also one of the first lawyers to bring a habeas action in 2002 while an associate with Shearman & Sterling in Washington. The impact of this issue is particularly significant because Mr. Boumediene and the men with whom he was seized were thousands of miles from any battlefield and did not raise arms against the US, as the government claims most detainees have done. "They all expect to be released and recognize that this has been a mistake," says Robert Kirsch, one of Mr. Boumediene's original lawyers at Wilmer, Cutler, Pickering, Hale and Dorr LLP, who visited his client last week to discuss final preparations for the argument. "They hope that the Supreme Court will give them some justice, which in this case is simply the opportunity to be heard," adds Kirsch, who along with over 40 others at the firm has logged more than 33,000 pro bono hours in representing six Bosnian citizens, including Boumediene, being held at Guantanamo. These issues have prompted submission of 19 amici curiae briefs on behalf of detainees by groups ranging from retired military officers to 383 UK and European parliamentarians. There are hundreds of habeas petitions pending and a decision in Boumediene's case, which is expected in the spring, could transform the litigation at Guantanamo and even prompt closure of its detainee operations. Legal experts supporting the government's position claim that its current framework is sufficient. "The US constitution does not protect non-citizens who are captured in war," says Victoria Toensing, a former deputy assistant attorney-general and a current partner with diGenova & Toensing, LLP in Washington. Toensing co-authored the amicus brief submitted by the Foundation for Defense of Democracies. Andrea Prasow disagrees. She is a civilian lawyer employed by the office of military commissions serving as assistant defense counsel in Hamdan vs Rumsfeld. The military court in the Hamdan case will hold hearings at the base to set a trial schedule on the same day that the Supreme Court presides over Boumediene. "What we expect is that the Supreme Court will make it clear that the detainees held at Guantanamo do have constitutional rights and that will have a significant impact on Mr. Hamdan's military commissions proceedings," says Prasow. While there is some dispute over the merits of each position, most experts agree that an adverse decision will have a significant impact. "Obviously, if the Guantanamo detainees can gain access to immediate habeas in the DC district courts, with plenary review, then one of the principal advantages for sitting detainees there will have evaporated," says Brian D. Boyle, former principal deputy associate attorney-general in the US Justice Department and law clerk to Supreme Court Justice Scalia, now a partner with O'Melveny & Myers in Washington. Huskey has a more definitive view. "The base will eventually close no matter what the outcome." Ari Kaplan is an attorney and a writer based in the New York City area. He is developing a documentary called "Like Snowflakes in December" about lawyers working with detainees at Guantanamo Bay.