Their Day in Court

Wednesday, December 5, 2007

LAKHDAR BOUMEDIENE and five other Algerians have been held without trial for almost six years at the Guantanamo Bay Naval Base. The men, all Bosnian nationals, were arrested in Bosnia at the behest of the United States in October 2001 on suspicion that they were plotting to bomb the U.S. Embassy there. In January 2002, Bosnian courts ordered their release after finding no basis for the allegations, but the United States demanded and got custody of the men and transported them to Guantanamo, where they have had limited consultation with lawyers and limited ability to challenge their detention. Lawyers for the men, and for others in a companion case, will argue before the Supreme Court today that the detainees have a constitutional right to habeas corpus -- to have a judge review their detention.

The Bush administration counters that non-U.S. citizens detained on foreign soil have no right to the constitutional protections enjoyed by Americans. The administration has strong legal precedent on its side: In 1950, the Supreme Court ruled that alien combatants held in U.S.-occupied Germany had no habeas rights. Yet the administration nonetheless is likely to lose this case -- and deservedly so, after its profoundly myopic and morally vacuous handling of detainees.

The administration at almost every turn has resisted extending meaningful rights to those it holds as enemy combatants. In Afghanistan, simple hearings to determine prisoners' status would have kept the United States clearly within Geneva Conventions guidelines; the administration balked. After the Supreme Court held that a federal habeas statute gave Guantanamo detainees the right to challenge their detentions in federal court, the administration, with the help of congressional allies, tried to strip the courts of jurisdiction. It created military tribunals to judge whether detainees were "enemy combatants" subject to indefinite detention, along with special commissions for criminal trials. No Guantanamo detainee has yet faced a full-fledged trial, and the tribunal proceedings have proved woefully inadequate. Witness Mr. Boumediene and the others in this case, who have been held for years without any charge or process other than highly constricted hearings in which they have not been represented by lawyers or even fully informed of the evidence against them. This offends the most fundamental tenets of justice and does incalculable harm to the nation's image and moral authority abroad.

The administration's stubbornness has raised a risk that the courts might eventually overreach, infringing on the executive branch's constitutional prerogatives to wage war. But while the constitution may not bestow on all foreign detainees a right to habeas corpus, it would be reasonable to recognize such rights for those detained at Guantanamo. The United States is the sole and unchallenged jailer there; the detainees have no other sovereign to which they can appeal their detentions.

Yet if the justices reach such a conclusion, some 300 habeas petitions could flood the federal courts. This could still be avoided if Congress and the administration finally legislate -- as they should have done from the start -- a process that gives detainees a meaningful chance to challenge their detentions. That process would include a guarantee of legal representation, the opportunity to review some evidence (subject to national security considerations) and the right to present evidence to rebut government allegations.

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