Guantanamo Detainees Granted More Protections Than Any Enemy Combatants in U.S. History

On Thursday, the Supreme Court ruled that habeas corpus applies to detainees at the U.S. naval base at Guantanamo Bay, Cuba. While the ruling does not mean federal courts will necessarily release any of the detainees any time soon, it means these prisoners will have the right to petition civilian courts in the U.S. for their release.

In one sense, this ruling sounds reasonable. These people have been held, in many cases, for more than five years, and it’s not like the ruling means they will automatically be released; rather, they will have the right to appear before judges in U.S. district courts and make their case. The only argument that can win them release, according to Joseph Goldstein’s story in this weekend’s New York Sun, would be that of mistaken identity: so long as the U.S. government can show they are enemy combatants, they won’t be released.

But here’s the rub: while the Supreme Court has upheld the designation of enemy combatant for those who can be proven to have fought on the battlefield, it “hasn’t upheld the designation for prisoners there who were apprehended under less clear-cut circumstances,” according to Goldstein’s story.

This loophole strikes me as ominous. On the one hand, one would logically figure no judge in his or her right mind would release any of these people if there was a reasonable possibility that they were terrorists. On the other hand, there has been so much liberal hysteria in the U.S. and around the world about Guantanamo even the U.S. military seems to have erred on the side of reckless liberalism on this issue.

What many people, including some of Guantanamo’s most vociferous critics, don’t seem to realize or discuss is that there already exists a mechanism for regularly reviewing detainees’ cases and claims of innocence, and that this provision means these detainees have more protections under U.S. law than any enemy combatants in U.S. history. The provision takes the form of military hearings called Combat Status Review Tribunals. These hearings, which take place every year, allow detainees and their attorneys (yes, they have attorneys!) to present evidence before a military tribunal and argue for the detainees’ release.

That is how more than 30 men who, according to the New York Sun story’s citation of Justice Antonin Scalia, later turned up on the battlefield to threaten or kill Americans, gained their releases from Guantanamo.

In addition to having led to these releases, the existence of these hearings means these Guantanamo detainees have more rights than any other enemy combatants have had in U.S. history. In other words, because these detainees are likely to be terrorists who don’t wear uniforms, and because they have in all likelihood run to do evil as opposed to having been conscripted to do it like, for instance, many German and Japanese soldiers during World War II, the former have more rights than the latter did.

Is it just me or is there something logically and morally backward about this formulation?

I suppose it can be argued, on the other hand, that since the Combat Status Review Tribunals led to the premature release of more than 30 hard core enemy combatants, U.S. district courts deserve a crack at the problem. What worries me, though, is I’m assuming they are more liberal than the military tribunals.

Today’s piece in The Sun quotes Justice Antonin Scalia as predicting this ruling will “almost certainly cause more Americans to be killed.” It also quotes President Bush as saying, “We’ll abide by the court’s decision. That doesn’t mean I have to agree with it.”

Let’s remember that, whatever his flaws may be, this President has for the most part done a fine job of protecting this country since 9/11, and he has done so with many detractors undermining him every step of the way.

I for one am grateful.

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