No Charge, No Exit

Certainly nobody can dispute that the Supreme Court handed the president a significant defeat last month, invalidating his jerry-rigged system for trying suspected terrorists of war crimes at Guantanamo and rebuffing his claims of unbridled executive power. If the administration wants to conduct military trials, the Court ruled in Hamdan v. Rumsfeld, it must follow the time-tested procedures of the United States' own Uniform Code of Military Justice and obey the minimal safeguards mandated by the 1949 Geneva Conventions.

This is highly significant -- for those who have been charged with war crimes. The problem is that only a handful of Guantanamo detainees have ever been charged. Hamdan does not resolve the saga of the 450 detainees who continue to languish without charge and without hearings after more than four years. For them, Hamdan's guarantee of a fair trial ultimately means little.

We do not need to look again to the Supreme Court for guidance on this issue; the high court already addressed the detainees' plight more than two years ago. In Rasul v. Bush, the Supreme Court ruled that all Guantanamo detainees have the right to challenge their confinement through the centuries-old writ of habeas corpus. As the Court reminded the president, habeas corpus, revered by the Founding Fathers as the Great Writ of Liberty, has checked executive imprisonment since the Magna Carta. Its application here is simple: If the United States wants to detain people at Guantanamo, it must defend its allegations in court.

The administration, however, responded to Rasul by trying to block any hearings, stonewalling with a determination reminiscent of southern states' defiance of court orders on civil rights a generation ago. All the Supreme Court said, argued the government, was that detainees could file a piece of paper in court; that paper, the habeas corpus petition, was meaningless, since the detainees had no rights a court could enforce. For good measure, the administration hastily concocted the Combatant Status Review Tribunal (CSRT) as a rubber stamp for Guantanamo detentions. It then claimed that the CSRT provided an adequate substitute for habeas corpus and satisfied any rights the detainees had. Not surprisingly, the CSRT found nearly every detainee an “enemy combatant.” (And even classification as a “non-enemy combatant” does not mean freedom, since the United States refuses to release prisoners it cannot return to their home countries).

If the military commissions' problems were “glaring,” as Hamdan said, the CSRT's flaws are positively blinding. The CSRT, for example, prohibits detainees from reviewing accusations against them, presenting evidence, or obtaining the assistance of a lawyer. And, as a district judge found, it even permits the use of evidence gained through torture.

To make matters worse, the CSRT gave the term “enemy combatant” a sweeping, almost limitless reach. As one top government lawyer told a district judge in Washington after the Rasul decision, an old lady in Switzerland who unwittingly writes checks to what she thinks is a charity but what really is a front to finance al-Qaeda activities can be detained as an “enemy combatant” in the global “war on terror.” True, there may not be any old Swiss ladies at Guantanamo. But CSRT records, made public only after a district judge in New York ordered the government to release them, reveal many cases of innocent association, mistaken identity, and prisoners sold to the United States by bounty hunters amid the frenzy of the U.S. military action in Afghanistan. Yet these people have received even less due process than Salim Hamdan, Osama bin Laden's personal driver, because the government has not charged them -- and never will.

The administration argues that the detainees are not being punished, but instead are being held as a “simple wartime measure” to prevent their return to “the battlefield.” That description, however, blinks reality. Most prisoners were not captured on a battlefield and never engaged in combat or hostilities against America or its allies, according to a 2006 report from Seton Hall law school analyzing government data. Moreover, since the administration says its “war on terror” will continue for generations, this “simple wartime measure” could well mean a life sentence.

That is why arguments for denying rights to Guantanamo detainees have it backwards: The nature of the conflict with al-Qaeda makes it more, not less, important that the government's allegations are tested and its evidence carefully assessed by a neutral decision-maker. Otherwise, innocent people, whom the government has no intention of prosecuting, can simply be jailed forever.

A federal appeals court in Washington, D.C., is now considering the detainees' challenge to the CSRT, a protracted legal battle that has kept habeas petitions at a virtual standstill for more than 18 months. That battle could end up in the Supreme Court, meaning further delays for prisoners who have yet to have their day in court. The way to avoid those delays is simple: Lower courts should do what the Supreme Court already told them to do and hold habeas hearings. That process is hardly a mystery. Judges have done it since common law in England by making the jailor come forward with his proof.

In the end, the military trials and detentions at Guantanamo are different sides of the same coin: detention without a lawful process. If the government cannot try individuals based on multiple hearsay and coerced testimony, as the Supreme Court ruled in Hamdan, surely it cannot imprison them forever under the rubric of “prevention” with even fewer safeguards.

Jonathan Hafetz is an attorney at the Brennan Center for Justice at New York University School of Law and writes frequently on liberty and national security issues. He previously filed friend-of-the-court briefs on the history of habeas corpus in the Guantanamo detainee litigation.

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