Justice at Guantanamo

Tuesday, February 19, 2008

THE BUSH administration has asked the Supreme Court to take a case it says needs to be decided quickly because it presents a serious threat to national security. The justices should grant the administration its wish, and promptly rule against it.

The case involves a challenge to a lower court's ruling involving the Combatant Status Review Tribunals, which were set up to decide whether detainees at Guantanamo Bay are being legally held as enemy combatants. Under the tribunal system, a government recorder is tasked with gathering information about a detainee from government and military databases, including exculpatory information that may argue against the detainee's incarceration. The recorder then culls the information for the most relevant evidence and provides it to the tribunals. The U.S. Court of Appeals for the D.C. Circuit has the exclusive right under the Detainee Treatment Act to review the tribunals' decisions.

In Gates v. Bismullah, a unanimous D.C. Circuit panel found last year that it could not properly rule on a case without seeing all of the information gathered by the recorder -- not just what was forwarded to the tribunal. The administration decried the decision, saying it imposes an extraordinary burden on the government; the administration says it keeps records only of the information presented at a tribunal. Forcing government personnel to reconstruct the original record would squander resources necessary to the preservation of national security, the government claims. The D.C. Circuit gave the government a choice: Go back and re-collect all of the raw information or give detainees new tribunals. The administration filed its appeal with the Supreme Court on Thursday.

The D.C. Circuit deserves credit for insisting on meaningful review. Without the ability to examine the entire record, no court could pass judgment on whether the evidence presented to the tribunal was complete and in context; nor could it determine whether exculpatory evidence was omitted. But the circuit court's decision can go only so far in fixing the infirmities inherent in the tribunal system. Justice cannot be served unless the tribunals themselves allow detainees such jurisprudential mainstays as the right to a lawyer and the right to review and rebut evidence against them.

The justices already have pending before them a case that examines whether Guantanamo detainees have a constitutional right to challenge their detention in federal court. They should rule yes on that question, as we have urged before. Once they've crossed that threshold, the Bismullah case should help them decide whether the military system that was set up for detainees is an adequate substitute for federal court review. The answer should be a resounding no. They should render this judgment before they recess for the summer, lest another year go by in which hundreds of detainees are held behind bars with little or no prospect for justice.


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