Spectacle at Guantanamo
The new legal system for holding and trying detainees produces a predictable mess.

Wednesday, April 4, 2007

THE SUPREME Court's decision not to consider, for now, the denial of appeal rights for foreign prisoners at Guantanamo Bay, when combined with the results of the first criminal case held there, vividly demonstrates the folly of the legal scheme for detainees that Congress hastily approved last year. David Hicks, the 31-year-old Australian who was the first person to be brought before the special military commissions Congress sanctioned, escaped with a plea bargain that will free him after he serves nine more months in an Australian prison. Mr. Hicks pleaded guilty last week to a terrorism charge; a prosecutor described him as "an enemy" who was "trying to kill Americans."

Yet while Mr. Hicks goes home, nearly 300 Guantanamo inmates who almost certainly will never be charged with any crime continue to face indefinite detention, without the right to challenge their imprisonment under the ancient right of habeas corpus. Their only recourse is the review panels set up by the Pentagon, where they cannot be represented by lawyers and don't have access to the classified evidence that is often used against them. Some may be genuinely dangerous militants; some are almost certainly victims of mistaken identity or men who fit the description Mr. Hicks's lawyer gave of him -- a hapless "wannabe" who never tried to kill anyone.

Far from resolving the mess at Guantanamo, Congress's decisions and the Bush administration's use of them has deepened the quagmire. Senior al-Qaeda suspects formerly held in secret CIA prisons are finally being produced for quasi-public hearings -- but the administration is censoring their allegations of torture, which only strengthens suspicions that the CIA is covering up illegal activity.

The Hicks case has meanwhile demonstrated that the commissions can be politically twisted in a way that would be inconceivable in a credible court of law. Mr. Hicks's guilty plea was the result of a deal made by the Bush political appointee who oversees the commissions; to be returned to Australia, Mr. Hicks agreed to stipulate that he has "never been illegally treated" -- despite his previous allegations to the contrary -- and promised not to speak to reporters for a year. That means he will return home before the expected reelection bid of Australian Prime Minister John Howard, a close ally of President Bush.

Secretary of Defense Robert M. Gates was right when he told a congressional hearing last week that "there is a taint" about Guantanamo and that trials there "lack credibility" in "the international community." Mr. Gates said he'd like to see Guantanamo closed and Congress pass new legislation to govern those prisoners who must still be held. Those are good goals that may take time to reach. That's why Congress should take the immediate remedial action that is available: restoring habeas corpus appeal rights to all prisoners at Guantanamo.

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