An Independent Lens

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Monday, August 3, 2009

MORE THAN a year has elapsed since the Supreme Court's landmark ruling giving detainees the right to challenge in federal court their captivity at the U.S. naval base in Guantanamo Bay, Cuba. While the process has moved more slowly than many had hoped, the results have shown the indisputable value of having independent judges review the government's detention decisions.

In the 33 cases adjudicated, judges have ruled in favor of detainees 28 times. In many of these matters judges noted -- often emphatically -- that the government failed to provide substantial evidence to justify detention, let alone continued detention. Had these judges not been empowered to scrutinize the facts, the government would be free to continue to hold these detainees despite having little or no proof that they are dangerous or affiliated with terrorist organizations.

Any number of cases clearly illustrate this phenomena, including that of the Uighur detainees the government is still trying to relocate to other countries. Just last week, Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia ordered the release of Mohammed Jawad, who may have been as young as 12 when he was captured in Afghanistan in 2002 for allegedly throwing a grenade that seriously wounded two U.S. Special Forces soldiers and their Afghan interpreter. After some seven years of detention, the government agreed not to rely on confessions given by Mr. Jawad because they had been obtained through coercion, and it also conceded that it did not have enough evidence to hold Mr. Jawad. The Justice Department claimed this week that it has recently obtained new information untainted by torture that may allow a federal criminal prosecution of Mr. Jawad; it will probably announce its decision on whether to press charges late this month.

Roughly 200 more Guantanamo cases remain in the judicial pipeline, and it is highly likely that judges will find that the government has sufficient justification to hold at least some of these men. Before the Supreme Court's 2008 decision in Boumediene v. Bush, the government had virtual carte blanche to detain whom it wished, and even lawyers for detainees often were not able to review the evidence against their clients. Even though this evidence remains classified and not subject to public scrutiny, judicial review provides the country and the world some level of confidence that, if someone is kept behind bars, it is based on more than a government whim.

Many years were wasted as the Bush administration tried to channel detainee cases through flawed military proceedings; the habeas corpus proceedings themselves have been slowed by procedural uncertainties and complications in sorting through evidence. These delays could be greatly reduced through the creation of a national security court. Such a court would be staffed by federal judges and governed by a clear set of rules to handle cases against detainees believed too dangerous for release but against whom there is not enough conventional evidence to prosecute in a traditional court of law. The Obama administration, which is conducting a review of the detention system, could ensure fairer and faster treatment of future detainees by embracing this reform.


© 2009 The Washington Post Company

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