This week, the U.S. Supreme Court hears arguments in a case challenging the detention of prisoners at Guantanamo Bay, Cuba. It is a case with ramifications far beyond Guantanamo, for the questions it poses reflect a clash of values in a time of a new type of warfare.
Legally, the Supreme Court case focuses on the rights of Guantanamo prisoners to challenge their detention in U.S. courts using the constitutionally guaranteed procedure called writ of habeas corpus. Historically, the writ has been an important mechanism in protecting individuals from arbitrary imprisonment by the state. It guarantees a complete review by a neutral fact-finder to ascertain whether the government has justifiably jailed someone.
Guantanamo detainees claim there is no neutral fact-finder at Guantanamo and that the hearing officers are subject to command influence. They claim that they cannot rebut the evidence against them because most of it is classified and they are forbidden to know what the evidence is. They note that they are not permitted to have lawyers at these hearings, and they say all the evidence, whether or not it's coerced, is presumed to be valid.
'Walls Are Closing In'
In the past three years, the Bush administration has lost two cases in the Supreme Court involving the rights of Gitmo prisoners, and even the administration's staunchest defenders privately agree with this assessment from detainee lawyer David Remes, who says the international community, the courts and Congress are all breathing down the Bush administration's neck:
"The administration's under incredible pressure to empty Guantanamo out," Remes said. "They've been able to delay definitive judicial action on Guantanamo for six years, really, but at this point, I think it's fair to say that the walls are closing in on them."
At the same time, though, there is a legitimate question of what to do with the detainees at Guantanamo and elsewhere.
What to Do with Released Detainees?
David Rivkin, a lawyer who worked in the administration of former President George H.W. Bush, concedes that some Guantanamo detainees may be innocent, but if the system for evaluating people seized as terrorists becomes any more stringent, he said, "we wouldn't be able to hold most of these people, not because they're innocent but because we don't have enough information to establish that level of rigor because, in war, you rarely have this kind of information. So, we would be releasing all of them; the system would be broken from the other side.
Rivkin said he does not believe the U.S. government could justify detaining most of the Guantanamo detainees if it were put to the more rigorous test of a habeas corpus hearing in U.S. courts. Moreover, "I've been told, back when I was at Guantanamo, that Guantanamo itself has become a gigantic al-Qaida training cell — it's like a graduate school, if you will, for these guys."
And despite the best efforts of the U.S. government, in many cases, Rivkin said, countries don't want to take back the detainees.
"Let's assume quaintly that they're not innocent shepherds. We cannot hold them, and we cannot send them to any other country. What are we supposed to do — give them political asylum here? Let them walk the streets?" Rivkin said.
Going Back to the Battle
Lawyers for the detainees say the Bush administration is in a box of its own making, that it vetoed the military's recommendation to conduct on-site reviews of detainees when they were seized in Afghanistan; that it then shipped people to Guantanamo, refusing to set up any hearing process until forced to by the Supreme Court three years later; that it then set up a minimalist process intended to rubber-stamp the detentions; and that it now finds it difficult to offload these people to other countries.
"This is one of the cruel ironies of the whole Guantanamo situation: We bring them to Guantanamo, we call them dangerous terrorists, we call them the worst of the worst, and then we expect their home countries to take them back," detainee lawyer Remes said.
In fact, almost all of the detainees who have been released, most on condition that they be subject to legal process in their own countries, have been freed, according to detainee lawyers. To cite just one example, of the 12 Kuwaitis seized in Afghanistan who claimed they were doing charitable missionary work, eight were sent home, tried and acquitted.
Some administration supporters contend that as many as 50 of those who have been released have gone back to the battle. That number is subject to dispute. The Defense Department says six named detainees have been killed or recaptured and that it "has reason to suspect" that another 25 have gone back to the battle. But of the six named individuals, two never were at Guantanamo, according to lawyers for the detainees, and the other four were released prior to any litigation.
"I've asked for evidence," said Tom Wilner, a partner at a major Wall Street law firm and one of the detainee lawyers. "I've said 'show me who's returned to the battlefield,' and they never have."
Wilner contends that the problems will become smaller if the U.S. accords some basic fairness to the detainees instead of imposing what he sees as a rigged system. That doesn't mean detainees need all the rights of a criminal trial, he says. Even summaries of classified evidence would be OK with him, as long as there is enough specificity that a detainee can answer the charges against him. That is not the way the system operates now, he said.
"Let me give you an example. I have a client who was held down there on the basis of an allegation that two years after he went to Guantanamo, an alias of his name appeared on a computer hard drive of somebody who might have been associated with al-Qaida. He said, 'Well, I don't have any aliases. What's the alias? They said 'We can't tell you; it's classified.' We said, where was the computer, whose was it? 'Can't tell you; it's classified.' When was this? 'Can't tell you.' It's Kafkaesque."
Wilner maintains that the constitutional guarantee of habeas corpus was written specifically to deal with wartime.
"All this stuff about war — our constitution was written in 1787, right after a war. They wrote it with a war in mind," Wilner said.
But the Bush administration counters that never in our history has an enemy alien captured outside the U.S. been given access to U.S. courts. And, officials say, if the Guantanamo detainees get such rights, why not other prisoners detained at other military bases in Afghanistan, Iraq and elsewhere? In short, they say, U.S. detention facilities would become a revolving door.