As the U.S. Supreme Court heard arguments Wednesday over the rights of detainees at Guantanamo Bay, Minneapolis attorneys were preparing to travel to the U.S. facility in Cuba for their fifth visit with an Algerian man they represent.
Their trip in mid-January likely will come before the court delivers its decision regarding the legal fate of some 300 foreigners who have been imprisoned at Guantanamo for up to six years.
But suspense and delay have become routine as courts, the White House and Congress use issues surrounding Guantanamo as center ring for their fight over the Constitution’s applications in the age of terrorism.
“We have been in a holding pattern since Day 1,” said Nicole Moen, one of four attorneys at the Minneapolis firm Fredrikson & Byron who volunteered to take a Guantanamo case without compensation.
The question argued Wednesday is whether the men at Guantanamo can challenge their detention in U.S. federal courts through the constitutional right known as habeas corpus. In 2004, the Supreme Court said they could. A Republican-controlled Congress responded with laws saying no court could hear habeas petitions from foreigners held as enemy combatants.
On Wednesday, Solicitor General Paul Clement argued the Bush administration’s position that foreigners captured and held outside the United States have no right to habeas petitions. Congress authorized an alternative in military commissions where a three-person panel considers whether a person has been properly detained as an enemy combatant.
Seth Waxman, a former solicitor general who argued on behalf of several detainees, insisted that current law leaves the men locked up indefinitely with no prospect of challenging their detention in a way that would square with the Constitution. He rejected the alternative of the military commissions where detainees haven’t been allowed to hear evidence against them, bring witnesses or be represented by attorneys.
It is risky to predict a court decision based on questions that arise during arguments. But Waxman met intense questioning from Chief Justice John Roberts and Justice Antonin Scalia, who challenged Waxman to come up with “one single case” throughout the centuries where an alien under similar circumstances was allowed his day in civilian courts.
A decision may not come until the end of June in the consolidated cases, Boumediene v. Bush and Al-Odah v. United States.
While not directly involved in the cases, the Algerian man represented by the Minneapolis team, Ahcene Zemiri, has a major stake in the decision. His own habeas petition “has been lying dormant,” before a federal court in Washington, D.C., since Nov. 2004, Moen said. Presumably, a right granted in the current cases would be available to others with petitions pending.
But Moen said there are good reasons to visit Zemiri now even though the legal ground may shift.
“First and foremost, we want to check up on our client and see how he is doing,” Moen said.
Denies terrorist activities
Zemiri was captured in Afghanistan in November 2001 as he and dozens of other Arab men tried to sneak out of the country during the heat of war. He has denied participating in terrorist activities, and his attorneys say they have seen no evidence he did so.
Attorneys are among the few advocates for the detainees who actually have been allowed to see them and assess their physical and mental conditions. Zemiri’s wife and a son he has never seen are in Canada where he once lived.
Zemiri joined several other detainees in a hunger strike, but he backed off, Moen said.
Some detainees have turned to suicide. A different Algerian man tried to slash his throat with a sharpened fingernail last month, the BBC reported Wednesday. He failed, but four others have killed themselves. And some detainees have fallen seriously ill.
A second important reason to go, Moen said, is to brief Zemiri on the pending Supreme Court decision and other recent legal developments.
Military officials reportedly are moving to hear more cases at Guantanamo without waiting for the Supreme Court decision.
Moen and Zemiri’s other attorneys — Debra Schneider, James Dorsey and John Lundquist, all with the Fredrikson firm — have advised him not to speak at military hearings while other prospects remain viable.
“We need to give him an update on the case and let him know where things are proceeding,” Moen said.