In late June, the Supreme Court issued its greatly anticipated decision in two cases
involving the detainees at Guantanamo Bay (Camp Delta). Both cases were from the United
States Court of Appeals for the District of Columbia Circuit. There was another, third decision on the detainees from the United States Court of Appeals for the Ninth Circuit (California), although for reasons that are not clear that decision was not expressly considered or discussed by the Supreme Court.

The short explanation of the Guantanamo Bay decision is that it is promising for those
concerned about the state of civil liberties in this country. Various civil liberties groups
applauded the decision. Many people breathed a sigh of relief. But a slightly longer explanation
will reveal that while the decision was commendable, it is hardly a "blow" to the Bush
Administration. The decision in fact leaves many questions unanswered and leaves the fate of the
detainees quite uncertain.

The detainees at the Guantanamo Bay naval base in Cuba comprise nearly 650 individuals, mostly seized by United States or Northern Alliance forces in combat operations in
Afghanistan. They represent an entire range of nationalities, including some British or Australian nationals. They have been held virtually incommunicado since their arrival, which for some has been more than two years. They have not had access to counsel or much other access to the outside world.

Revelations about the conditions there and about the use of duress techniques in
interrogations confirm that these detainees have not been lolling about in the Caribbean sunshine.
The United States claims that the detainees do not qualify as prisoners of war and so are not
entitled to the treatment required of prisoners of war under the Geneva Convention.

Military tribunals are expected to begin soon to bring the detainees through this military
court system. The procedures for these tribunals has been announced by the Department of
Defense. The tribunals can issue sentences of death. There is no appeal from a tribunal decision to United States courts.

The Supreme Court decision, however, did not involve the entire list of concerns about
the detainees, the legality of their detention, or the conditions of their confinement. The Supreme Court decision involved only the question of whether a legal action on behalf of the detainees (habeas corpus petition), raising these kinds of issues, could be even considered by any federal court.

Petitions had been filed in federal court on behalf of certain of the detainees--these
included detainees who said they were not from Afghanistan and were not involved in any
combat against the United States when they were seized. The Administration requested that the
court dismiss the petitions because the federal court did not have jurisdiction to consider them,
and the court did so. That decision was affirmed in the appeal to the Circuit Court of Appeals for
the D.C. Circuit.

The Administration had many reasons for its claim that the federal courts do not have
jurisdiction over any legal action by the detainees. A major reason was that the Guantanamo Bay military base is not actually part of the sovereign territory of the United States because the land does not belong to the United States. The military base exists under a special lease that was arranged with Cuba in 1903 after the Spanish American War. Another of the Administration's reasons was its claim that the right of petition to federal courts does not extend to foreigners, especially those held by the military in a combat situation.

The Supreme Court saw it otherwise. It decided that federal courts do have jurisdiction to consider the detainees' petitions. The petitions were brought by several Kuwaitis and two Australians (Mamdouh Habib and David Hicks) who said they were not combatants against the
United States, are not engaged in any war with the United States, were illegally seized, and are
being illegally detained at Guantanamo Bay. The petitions sought release from custody, access to
counsel, freedom from interrogations, and other relief.

The habeas corpus claims were brought under the Constitution and the habeas corpus
statute (28 U.S.C. §2241). That statute allows a petition by any person who claims to be held "in
custody in violation of the Constitution or laws or treaties of the United States." The claims were also brought under the Alien Tort Statute (28 U.S.C. §1350) and the Administrative Procedure
Act.

The Supreme Court observed that even though the military base is under the 1903 lease,
the lease says that United States has "complete jurisdiction and control" over all activities on the base. The United States can continue to use the base until the US "abandons" the base.

This was enough for the Court to decide that federal courts have jurisdiction over claims
by detainees held at that base. The Court said that habeas corpus can reach persons who are held
in territories where the US has control and authority, even though the US might not exercise
actual "sovereignty." Even if the United States does not have actual "sovereignty" there, it
exercises complete control over the area.

The Court also mentioned that the persons involved in the petition are not nationals of
countries at war with the United States, deny that they have engaged in or plotted acts of
aggression against the US, have not been formally charged with any wrongdoing, have not had
the benefit of a status hearing, and have been imprisoned for more than two years in territory
over which the US exercises exclusive jurisdiction and control.

The Court also mentioned that if an American citizen were held at Guantanamo, the
federal courts could consider a habeas corpus by that person. The situation is not so different
even if the petitioner is not a United States citizen. "Considering that the statute draws no
distinction between Americans and aliens held in federal custody, there is little reason to think
that Congress intended the geographical coverage of the statute to vary depending on the
detainee's citizenship. Aliens held at the base, no less than American citizens, are entitled to
invoke the federal courts' authority under §2241."

There also is jurisdiction by the federal courts of the "custodians"--that is the United
States, base commanders, President, and Secretary of Defense. The Court said that the statute
"requires nothing more."

A concurring opinion by Justice Kennedy said that the Court could have confined its
decision to Guantanamo Bay. There was no need to expand the discussion which could create
other potential problems.

A very strong dissent by Justice Antonin Scalia (joined by Chief Justice William
Rehnquist and Justice Clarence Thomas) said flatly that habeas corpus was not intended to reach this far. The dissent said that no prior Supreme Court precedent could be used to support the decision. It also criticized what it deemed as improper judicial involvement in areas of defense and military activity that is confined to the President.

By this decision, the Guantanamo Bay detainees could bring a petition to the federal
courts challenging their detention. (In fact, shortly after the decision, the Pentagon announced that it would be conducting "status hearings" for all of the detainees.)

However, it is not clear whether a petition could be brought by detainees who are from countries that are "at war" with the United States, such as Afghanistan and perhaps Iraq. It is also not clear whether the actual detentions themselves are illegal. The Supreme Court never
reached that issue. It did not declare that the detentions are illegal or that the detainees must be released.

The decision also did not specify exactly where and exactly when these petitions should
be filed. It is possible that the petitions could be filed in any federal district court in the country--which would allow the petitions to be filed in federal courts located in potentially favorable appeal circuits.

Also, the decision did not declare if a petition could be filed to challenge the detention only, or if it could be filed to challenge a military tribunal ruling. And it did not decide any other requirements for the petition. And the Supreme Court decision did not clarify what sort of "reach" the petition right might have--which under a broad reading of the decision, could be beyond Guantanamo Bay.

So, while there is much to commend the Guantanamo Bay decision, there is much that
will be left to the federal courts. This would involve petitions, decisions, appeals, and perhaps another Supreme Court decision on the actual legality of the Guantanamo Bay detentions. That process might very well result in ultimate judicial rulings that the detentions themselves are legal. This--and the eventual fate of the detainees--remains unanswered.

C. William Michaels is an attorney in Baltimore, Maryland and the author of "No Greater
Threat: America After September 11 and the Rise of a National Security State" (Algora, 2002). "No
Greater Threat" is the only book containing a review of the entire USA PATRIOT Act. For more
information on the book and author, contact www.nogreaterthreat.com.