I agree that a mechanism must be established to distinguish those detainees at Guantanamo Bay, Cuba, who were engaged in hostile activities against the United States from those who were not, especially when administration officials have acknowledged privately that at least a third of the prisoners are being held there by mistake [editorial, March 14].
But I disagree with the notion that the recent decision by the D.C. Circuit was correct. The editorial characterized that decision as holding that the U.S. courts have no jurisdiction over foreigners held abroad "during a war." But the decision is not limited to times of war. It allows U.S. officials to detain any foreigner abroad at any time, for any reason and without judicial review.
That is a dangerous precedent.
And it is one that most legal scholars believe is wrong. Everyone agrees that the courts should give considerable deference to the president and other executive branch officials, particularly in times of war. But the courts do and must have some authority over the actions of U.S. government officials. After all, their powers do derive from the Constitution.
The idea that the courts lack oversight authority over U.S. officials because Cuba has sovereignty over Guantanamo -- even though that territory has been under the exclusive jurisdiction and control of the United States for more than 100 years -- makes no sense.
The writer represents 12 Kuwaitis held by the military at Guantanamo.