An attorney for the detainees, John Gibbons, former chief judge of the Philadelphia-based U.S. Court of Appeals for the Third Circuit, said the government had created a "lawless enclave" at Guantanamo and insulated itself from any oversight. Cuba has not ruled Guantanamo for 100 years, Gibbons said, and U.S. law is the only law that applies there.
Yesterday's arguments in the consolidated cases of Rasul v. Bush and Al Odah v. U.S. were the opening round in a comprehensive high court review of the Bush administration's antiterrorism policies. Next Wednesday, the court will hear two other challenges to federal detention policies for suspected terrorists.
Chief Justice William H. Rehnquist and Justice Antonin Scalia hammered away at Gibbons' reading of constitutional law and court precedent. The more liberal justices, including Stephen G. Breyer, John Paul Stevens and David H. Souter, questioned the legal basis for Olson's assertion of absolute power.
Two swing justices, Sandra Day O' Connor and Anthony M. Kennedy, expressed misgivings about both positions. An opinion could emerge from their middle ground.
How the justices decide will dictate whether the United States may continue to keep more than 600 detainees imprisoned at Guantanamo with no access to courts or lawyers.
Some analysts saw the issue in stark terms.
"Who will run the war on terrorism?" asked Jay Sekulow, legal counsel for the conservative American Center for Law and Justice, which supports the government's position. "Will it be hundreds of U.S. District Court judges across America, or the President as commander in chief of the U.S. armed forces?"
