by Josh Payne
LEWIS: ...you have to understand that some of these prisoners claim they're not prisoners of war at all. They just happened to be there in Afghanistan or in Zambia or in some other place 'cause several of these people in Guantanamo were not captured in Afghanistan. They were arrested in other countries and turned over to the United States and sent to Guantanamo. And they say, "We've got nothing to do with this. He just picked me up because I was walking down the street. I went out to buy a loaf of bread." And they want to have an opportunity to challenge the basis of their imprisonment.
PAYNE: And in this case no one has provided such a writ. They have not explained why they're holding these detainees. Is that correct?
LEWIS: The United States takes the position that these people in Guantanamo have no right to bring a habeas corpus petition in United States courts, as they've tried to do, because the Guantanamo Naval Base is in Cuba. Cuba is sovereign and the argument of the United States is that habeas corpus only applies in sovereign United States territory. Of course, the other side says that's not right, it applies in any place where the United States has control and we have uncontested control in Guantanamo Bay. But the two lower courts have divided on the issue. One lower court said, "Yes you can bring the action," and the other lower court said, "No you can't." And that's the issue the Supreme Court's gonna resolve.
PAYNE: If you extend President Bush's argument what would stop the US from opening more bases, were they allowed to, on foreign soil to avoid the legal system when it comes to detainees of this nature?
LEWIS: What a good question. The answer is there's nothing to stop him and in fact we have lots of prisoners, probably thousands and in any case hundreds in Afghanistan itself. We have prisoners at Bagram Air Force Base we have prisoners on the island of Diego Garcia in the middle of the Pacific. And most of them are so out of sight that we don't really know how many there are or why they're there. The people in Guantanamo, at least some of their names have been learned - I'm not sure how. But their relatives have brought these habeas corpus actions on their behalf so we were able to get certain knowledge. But the ones in these other places we really know nothing about.
PAYNE: Do you think the court's decision to hear the cases was more about the balance between civil liberties and national security or more about the balance of power between the executive and judicial branches?
LEWIS: I don't think the two are distinct. I think the two overlap. Because, in fact, James Madison and the other people who wrote the Constitution - Madison especially - saw the division between the three branches of government as a great protection of civil liberties because it would prevent abuse by any one branch; in this case, the executive branch. So I think both are involved. I think the court, the members of the Supreme Court, the justices, probably would think it - they wouldn't decide and say, "We're balancing civil liberties and national security." I think they would more likely turn to the familiar ground of the balance of powers and the separation of powers.
BACK ANNOUNCE: Anthony Lewis teaches a course on First Amendment issues at Columbia University's Graduate School of Journalism. He has won two Pulitzer Prizes for national reporting.