Lawyers representing two Britons held at Guantanamo Bay achieved a breakthrough yesterday when the US Supreme Court said it would consider whether the prisoners had the right to challenge their incarceration within the American courts.
In what will be the first time the Supreme Court rules on the Bush administration's anti- terrorism campaign, it will decide whether the prison camp at Guantanamo Bay is within the jurisdiction of the federal justice system. This could pave the way for lawyers to challenge the legality of keeping more than 680 prisoners locked up indefinitely and with no access to lawyers or their families.
"We are rather delighted," said Steven Watt, of the Centre for Constitutional Rights (CCR) in New York. "We are aware that in times of crisis the Supreme Court tends to shy away from such decisions."
The CCR brought the case on behalf of Shafiq Rasul and Asif Iqbal, two of nine Britons held at Guantanamo Bay, and the Australians David Hicks and Mamdouh Habib. Lawyers separately tabled a similar case on behalf of 12 Kuwaiti prisoners, and the Supreme Court will consider the cases together some time next year.
The Bush administration has argued - so far successfully - that Guantanamo Bay, a small parcel of land leased from the Cuban government, is outside the jurisdiction of the United States court system and that lawyers cannot challenge the conditions in which prisoners are held, including their lack of access to legal advice.
The Supreme Court said yesterday in a statement it would decide whether US "courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba". If the justices decide the federal courts do have jurisdiction, the case will be handed back to a lower court in Washington to hear arguments that the prisoners are being held illegally.
"It's a breakthrough - it really is," said Tom Wilner, a lawyer representing the Kuwaiti prisoners. "The Supreme Court hears less than 5 per cent of cases presented to it. The big issue is not just these prisoners but the 680 who are being held in a legal black hole. The question is whether the US can set up prison camps outside the US for foreign prisoners who are outside the jurisdiction of the courts."
The 680 prisoners, allegedly members of al-Qa'ida or the Taliban, were seized as part of the American military operation in Afghanistan, launched in response to the terror attacks of 11 September 2001. They have been held without charge at the prison.
Earlier this year Washington announced that two British prisoners, Moazzam Begg, 35, and Feroz Abbasi, 23, were among six selected to be the first to face a military tribunal. The British and US authorities are negotiating on what charges they may face.
Louise Christian, the solicitor representing the family of Mr Abbasi, described the court ruling as "good news", but was sceptical as to how the US courts would rule on the rights of the non-US prisoners. "The courts have already recognised this designation of enemy combatants and on this they say they are deferential to the executive," she said.
Last month the International Committee of the Red Cross said the uncertainty over the future of the prisoners had led to more than 30 suicide attempts.Reuse content