High Court Hears Guantanamo Arguments Today

Bump and Update:

You can listen to the oral arguments here.

The Supreme Court heard arguments in two cases today involving so-called "enemy combatants" held at Guantanamo Bay. The core question:

Can these foreign-born prisoners, held outside U.S. borders, use U.S. courts to try win their freedom?

Georgetown Law Prof and civil liberties expert David Cole, writing in the New York Times, says:

These suggestions that noncitizens have less right to be free than citizens are ill advised. Some provisions of the Constitution do explicitly limit their protections to United States citizens — the right to vote and the right to run for Congress or president, for example. The Bill of Rights, however, does not distinguish between citizens and noncitizens. It extends its protections in universal language, to "persons," "people" or "the accused." The framers considered these rights to be God-given natural rights, and God didn't give them only to persons holding American passports.

When one considers the specific right at issue in the enemy combatant cases — the right not to be locked up without a fair process — there is also no good reason to differentiate between citizens and foreigners. From the prisoner's standpoint, every human being has the same interest in not being locked up erroneously or arbitrarily. And from the government's perspective, the security interest in detaining terrorists is the same whether they are citizens or not.

...Every person deprived of his liberty under the authority of the United States government should have a right to due process. What process is due may differ depending on the circumstances of detention — whether on the battlefield or far from it. But the nationality of the detainee ought not affect the calculus. Finally, there is also good practical reason not to distinguish between the basic rights of citizens and foreign nationals. While the federal government has often introduced security initiatives by singling out foreigners, it has just as often sought to extend those tactics to citizens later. The suppression of subversive speech, for example, and race-based detention began as anti-alien measures. But they did not end there.

It used to take years to extend these tactics to American citizens. But things are speeding up. Today the Bush administration will defend its treatment of the Guantánamo detainees on the grounds that they are foreigners who do not deserve American legal protections. Next week, it will argue that it has just as much latitude to detain American citizens. The slippery slope has never been more slick.

The cases are Rasul v. Bush and Al Odah v. U.S. You can access the briefs here.

Update: The Christian Science Monitor examines the implication of the case.

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