The Road From Gitmo

It is unclear whether any of these plans are politically viable. Human-rights groups are cool to the idea of any alternative to the federal court system, fearing the creation of extra layers of legal bureaucracy that could too easily fall into the same traps as the Bush team's approach. "To be anything close to fair, [the court] would start looking a whole lot like the existing criminal justice system," argues Human Rights Watch lawyer Jennifer Daskal. That argument has found favor with some Democratic leaders on Capitol Hill, who have expressed skepticism about any alternative that strays from the established military and civilian justice systems.

For their part, Republicans who voiced their disapproval of the Boumediene decision have yet to announce their plans, at least publicly. "Legislation is a possible route, but it may not be something that can be done," said the White House official. Sens. John McCain and Lindsey Graham have both expressed interest in new laws that would, as McCain put it, "narrow down some of the wide-open aspects" of the decision, but their Senate offices put to rest rumors that they might do so before the upcoming recess. All are mindful that the Democratic majority in both houses of Congress—and the fact that Sen. Arlen Specter, ranking Republican on the Senate Judiciary Committee, hailed the Boumediene ruling—complicate matters politically.

Barack Obama, though beloved by the human-rights crowd, recently offered a glimpse that his thinking may deviate from theirs. Speaking with NEWSWEEK at a press event last week, he proposed locking detainees up in military facilities within the United States "in the same way that we locked them up at Gitmo," but added that "some modicum of due process" would be essential. "Without giving full-blown rights to those who are being held, we can set up a system of due process," he said. "We don't have to treat these folks as U.S. citizens. We don't have to treat them in the same way that we would treat a criminal suspect in the U.S., but we should abide by the Geneva conventions."

How does all this upheaval affect al-Maqaleh and others in similar circumstances? His case had been placed on hold pending Boumediene; with that decision in hand, the district court will likely resume consideration of his habeas petition within weeks. The outcome will likely hinge on whether the judge sees Bagram as Guantánamo's equivalent or as a war-zone detention center. For detainees held without charge in places without due process, the resolution of that question cannot come soon enough.

© 2008