What Next at Gitmo?

So all of the Guantánamo detainees will now challenge their trials in U.S. civilian courts?
I think people will be moving immediately. Justice delayed is justice denied, and people have been locked up for years without review. This will effect everyone in Guantánamo. Maybe there will be 275 rather than 300, since there may be some detainees who don't have lawyers or want lawyers, but you'll expect a number. But these can all easily be handled by the courts, since they process tens of thousands of habeas petitions every year. This will not be a problem.

But this won't directly impact the military commissions?
There are two general categories of detainees: those who have not been charged by the commissions, which is most of the Guantánamo detainees. It's only a handful that have been charged, about 15 now. It's really the case of those who have not been charged that was before the Supreme Court. So they're going to go forward with habeas petitions before the district court, which will decide whether they can be held as enemy combatants. That will involve two main inquiries. One, is this a valid definition of enemy combatant—does that definition extend to someone picked up in Bosnia, or someone like [Ali Saleh Kahlah] al-Marri, picked up in Illinois? And secondly, what about these allegations? [The government] will have to come up with some proof, and the district court will have to resolve it. For the commissions trials that have already started, they're affected by the decision that there are constitutional rights, because then the commissions defendants can challenge the commissions' [substitutes for] habeas corpus.

The big question now is, of course, what next for Guantánamo? Many critics want to close it, but the debate still rages about how best to prosecute alleged enemy combatants. What do you make of the proposals to set up a new court system within the United States to do that?
I think it's terrible. There is ample ability to deal with these cases through the [existing] criminal system. Ultimately, the lesson of the last seven years is that if you try to create new systems out of whole cloth, they lead to problems. Exhibit A is the military commissions at Guantánamo. I would much rather [have] a system that's been around for 230 years. [Developing a new system] really comes down to giving up fundamental, basic rights.

Are the detainees themselves aware of the decision?
Well, I'm sure the government hasn't told them, but there's probably a lawyer down at Guantánamo now, just because they're visiting, so I'm sure the word will spread. But lawyers aren't even allowed to call their clients and tell them about the decision. And, of course, they were told back in 2004 they had habeas corpus rights and they never got a hearing, so my guess is they'll be happy, but they'll believe it when they see it—when they actually have a day in court after seven years of having been denied one.

© 2008