Analysis: US court challenge

The US Government denies it is violating human rights

By the BBC's Jon Silverman

It is little surprise that Los Angeles district judge, Howard Matz, has declined to hear arguments relating to the detention of the suspects being held in military detention at Camp X-Ray without first deciding the key issue of jurisdiction - in other words, whether such a challenge can be heard before a US civil court.

If the judge declines jurisdiction, any amelioration of the prisoners' condition will have to be brought about by means of political rather than legal pressure

The reason is this. Guantanamo Bay in Cuba, though a US military facility, is still foreign soil which, according to many international lawyers, means that the suspects do not have rights enforceable under the US constitution.

The civil rights advocates mounting the challenge argue that the detention of the 158 suspects violates international law and that remedy can be found in the US courts.

Judge Matz will have to rule on this difference of interpretation.

If the case is allowed to go ahead, it will be based on the principle of habeas corpus, a fundamental English common law right.

Since the 17th century, it has been a protection against arbitrary arrest and imprisonment. If a judge accepts that a valid case has been made, he can order the jailer (in this case, presumably the United States Secretary of State for Defense) to appear before him to justify his action.

However, if, as expected, the judge declines jurisdiction, any amelioration of the prisoners' condition will have to be brought about by means of political rather than legal pressure.

Human rights

Both the United States and Britain continue to insist that the suspects are being held "in accordance with international norms and in accordance with the Geneva Convention".

Critics dispute this assertion and make a distinction between someone captured bearing arms (who should be regarded as a prisoner of war) and someone detained under other circumstances.

Feroz Abbasi is one of three British detainees at Guantanamo Bay

At the moment, though, such niceties of interpretation appear to be little more than academic.

On this side of the Atlantic, the position of the three British suspects is of particular interest.

The foreign office minister, Ben Bradshaw, said the government had not yet taken a position on which court should try the Britons - though he confirmed that representations would be made about any possible application of the death penalty.

It remains unclear whether any attempts will be made by lawyers to exercise rights under the Human Rights Act in respect of the men. Article Six of the European Human Rights Convention guarantees the right to a fair trial and, on the face of it, a trial in secret before a military commission set up by executive order does not appear to meet that requirement.