Guantánamo Cases Go to Supreme Court

The US supreme court will intervene for the first time today in the detention of more than 600 prisoners at the Guantánamo naval base, taking up a case that could impose the first ground rules on the Bush administration's conduct of the war on terror.

Today's case is the first of three challenges to the administration's sweeping powers over the hundreds of men and boys held for more than two years without charge or access to lawyers at the US base in Cuba following the invasion of Afghanistan.

Advocates for the Guantánamo detainees - and two US citizens held separately in military prisons - say the cases go to the heart of the Bush administration's assertions since the September 11 2001 attacks that it must conduct its battle against al-Qaida and other enemies free of judicial oversight in a US court.

The first case involves a small number of the 600 people held in custody at Guantánamo following their capture in Afghanistan and Pakistan in the autumn of 2001. Human rights workers say many of those held were simply in the wrong place at the wrong time.

"The exercise of executive power without possibility of judicial review jeopardises the keystone of our existence as nations - namely the rule of law," says a brief filed by 175 British MPs in today's hearing.

Next week the court will hear the case of two US citizens held in a US navy brig in South Carolina as "enemy combatants": Yasser Hamdi, who was captured in Afghanistan in late 2001, and Jose Padilla, a convert to Islam arrested in Chicago on suspicion of planning to detonate a radioactive "dirty bomb".

In the case of Mr Hamdi, who was born in Louisiana and raised in Saudi Arabia, lawyers will argue that the US military is not entitled to keep an American citizen in indefinite custody without access to a court to challenge his arrest as an enemy combatant. Mr Padilla's lawyers will offer a similar argument, noting that he was arrested on American soil.

"Taken all together, these cases will begin to set the ground rules for the war on terror," said Steven Shapiro, the legal director for the American Civil Liberties Union, which has entered a brief as a friend of the court on behalf of the Guantánamo detainees.

In today's hearing lawyers for 14 detainees will argue that the Bush administration can not remove its actions from judicial review.

Two of the original complainants, Britons Shafiq Rasul and Asif Iqbal, were sent home last month. Another complainant, Australian David Hicks, who is accused of fighting with the Taliban, has been listed for trial before a military commissionon an undisclosed date.

The Bush administration argues that it can hold prisoners indefinitely, and no court has jurisdiction to question the cause of their detention.

"The main principle is whether US courts can even look at what the executive is doing with regard to its detentions in Guantánamo," said Michael Ratner, the president of the Centre for Constitutional Rights, which brought the challenge. "What we are trying to say is that you can't have power with no judicial review because then that is power with no limits."

Mr Ratner said he was encouraged by the fact the justices were willing even to hear the case. To date, the lower courts have refused to consider the detainees' challenges to the legality of their confinement because they are not being held within the US. Those rulings were based on the treatment of German nationals after the second world war.

However, that does not mean the supreme court will be willing to challenge President Bush's leadership during what is seen as a time of war.