SINCE THE SUPREME Court ruled in June that federal courts have jurisdiction over legal challenges by detainees at Guantanamo Bay, Cuba, the government and attorneys for detainees have been struggling over how to implement the court's decision. The court itself was not helpful in this task. While the justices held that they could consider legal challenges by aliens held at the overseas naval base, they gave scant clue as to what rights, if any, such enemy fighters have. Indeed, they didn't even clarify the circumstances under which detainees can have access to lawyers to facilitate the litigation the court authorized. Consequently, as Guantanamo cases have proliferated -- the federal district court in Washington consolidated 13 cases last week for the purposes of considering the issues they all have in common -- the government has found itself fighting with lawyers for the detainees over the terms under which the litigation will proceed.
The government views the court's decision in minimal terms. The assertion of jurisdiction does not confer any rights on the detainees, save the right to have courts hear their cases, it contends. Most particularly, alien detainees held abroad have no right to counsel, so any access the government grants is a matter of grace, not a legal obligation. Consequently, the government has promulgated restrictive procedures under which the military can monitor attorney-client meetings or review material exchanged between lawyer and client. Lawyers for the detainees understandably balk at these restrictions, arguing that some right to counsel was necessarily implicit in the court's ruling and that this right must mean a true lawyer-client relationship, not a partial measure.
Both sides have legitimate points. The high court's reasoning on Guantanamo may well apply to overseas detainees elsewhere as well. So if detainees at Guantanamo have a right to counsel that parallels that of a person detained or prosecuted domestically, why doesn't Khalid Sheik Mohammed, or any prisoner of war in Iraq? Could Saddam Hussein, the day after his capture, have filed a petition in court in this country and had an unrestricted right to meet with a lawyer as a consequence? This is not historically what the laws of war have required. And given the capacity of such a rule to interfere with the conduct of warfare, it is reasonable for the government to argue that whatever the court may have meant, it couldn't have meant that.
The trouble is that the Supreme Court used language that seems to suggest that it did mean that. The justices wrote that the detainees "no less than American citizens" were entitled to seek relief from the courts. And in the case of an American citizen detainee -- Yaser Esam Hamdi -- they wrote that he "unquestionably has the right to access to counsel" in doing so. We did not favor the court's decision to supervise detentions at the base but argued that it was the administration's responsibility -- one it shirked -- to create a meaningful and transparent review process to consider detainee cases. In light of the court's decision to step in, however, access to counsel has to be substantial enough to enable a full airing of the issues detainees want to raise.
The Supreme Court is not the only body responsible for the current mess. Congress too has abdicated; the rules that govern a situation this novel should be a legislative question, one of many that Congress has chosen to slough off on the executive and judicial branches. And the administration, with its refusal for so long to create a reasonable process for handling detainees, did more than its share to create this situation. The first military tribunals, which the Pentagon designed to be free of judicial oversight, are set to begin this week, far too late. The result is hard to excuse: lower courts left guessing at what process they should use and what law they should apply. It's no way to run a court system -- much less a war.