After Gitmo Ruling, What Next for Detainees?

The Supreme Court delivered a blow to the Bush administration's polarizing Guantánamo Bay policies Thursday, giving the roughly 300 foreign terror suspects being held there the right to challenge their detention through the U.S. civilian court system. In a 5-4 ruling on the jointly decided cases Boumediene v. Bush and Al-Odah v. The United States, the nation's highest court determined that the detainees have a constitutional right to habeas corpus despite their detention outside the borders of the United States. Further, the justices rejected the administration's argument that the reviews provided through the Military Commissions Act of 2006 and the Detainee Treatment Act of 2005 were adequate substitutes for that right.

Also announced was the court's decision on the cases of Shawqui Omar and Mohammad Munaf, Americans detained on terrorism-related charges in Iraq who similarly argued for habeas corpus and challenged their pending transfer to Iraqi authorities. While the justices likewise upheld their habeas rights, they unanimously ruled that Iraq has jurisdiction over those within their borders.

Thursday's rulings leave many questions about the future of U.S. detention policies unanswered, but it seems clear that the federal court system will be playing a much bigger role in addressing the arguments. To find out what it's like at the center of the legal storm, NEWSWEEK's Katie Paul spoke with attorney Jonathan Hafetz, who represented the petitioners in the Munaf and Omar cases and coordinated over 20 amicus briefs for the Boumediene case. Hafetz works with the Brennan Center, a public policy group at New York University's law school. Excerpts:

NEWSWEEK: What does this decision mean for the detainees held at Guantánamo?
Jonathan Hafetz: It's a vindication of the basic principle that government cannot deprive individuals of habeas corpus when it detains them merely by holding them outside the United States. It's a real vindication for the Guantánamo detainees to finally have their day in court and for the rule of law. It also has implications for the military commissions, because if the Constitution applies, then all the people who have been charged before the commissions are going to be able to contend that the commissions have to satisfy the Constitution, which they haven't been able to do so far.

What are the implications of that?
Guantánamo detainees will have a right to go forward in [civilian] court and have fair hearings on their habeas cases. Beyond Guantánamo, the decision leaves open the possibility that it may extend more broadly. There are no bright-line rules about [prisons located] inside or outside the United States, so the U.S. can't set up prisons beyond the law elsewhere on some other island or even another country. It won't directly affect the commissions, but with regard to the Khalid Sheikh Mohammad trial, the Omar Khadr trial, the [Salim Ahmed] Hamdan trial, and others, because the Supreme Court says Guantánamo is sufficiently like U.S. territory, they're now going to be able to say their trials violate the Constitution.

At one point during the arguments, one of the justices asked, essentially, if U.S. law doesn't apply there, then what does? Not Cuban law, certainly.
Right, that's exactly what Guantánamo has been—an effort to create a law-free zone. And it was rejected in 2004, and what's different is that Congress came in to try to take away habeas corpus, and so the Supreme Court had to confront whether or not there's rights under the Constitution for people outside the sovereignty of the United States. [With that decided], the big issue after that is how far it's going to extend. For example, once lawyers started going to Guantánamo, they stopped bringing people there and started bringing them to Bagram [a detention facility in Afghanistan]—so what does this mean for people at Bagram? The number of detainees in Bagram is triple Guantánamo now, and there have been a number of people moved from Guantánamo to Bagram. Guantánamo is just the surface of a much larger system.

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.