Tug of War Over Gitmo

The day may be remembered for launching two legal showdowns that could transform the fate of Guantánamo's detainees—and of the secretive prison itself. On December 5, after nearly six years in U.S. custody, Salim Hamdan—a Yemeni man charged with aiding al Qaeda as Osama bin Laden's driver—will appear inside a courtroom at Guantánamo Bay. If all goes as planned, his hearing could lead to the first trial of a detainee by military commission, a special court created last year to try terrorism suspects held at the prison.

Guards guide a shackled captive at Gitmo's prison.

At nearly the same hour on the same day, the Supreme Court will be listening to arguments in two cases that could give detainees the right to challenge the fairness of the system that holds them.

It's an odd convergence. That the government would press ahead with a military commission hearing in the face of a major legal test highlights the confusion clouding the rights of Guantánamo's remaining 305 prisoners, nearly all of whom have been held for years without any official charges. Even today, only three men, including Hamdan, face formal charges.

This week's Supreme Court cases consider whether detainees have a constitutional right to challenge their imprisonment in federal court through a habeas corpus petition, guaranteed for anyone inside the United States but denied to Guantánamo's prisoners. It's the fourth time the justices have heard appeals by detainees. If the court leans in their favor—as it largely has done the three previous times—it could shatter the government's ability to shield proceedings from greater scrutiny.

That's the sort of oversight military commissions have been designed to avoid. Fear of increased scrutiny has reignited internal government discussions about closing Guantánamo's prison before a ruling threatens its legitimacy. "No matter what happens, there are still significant battles on the horizon," says Geoffrey Corn, a professor at the South Texas College of Law.

Gitmo's legitimacy has long been controversial. The prison was established after 9/11 to hold detainees suspected of terrorism. The Bush administration chose the base in Cuba in part so prisoners—who the government claimed were captured in Afghanistan and affiliated with al Qaeda—would not be entitled to key constitutional rights guaranteed to anyone on U.S. soil.

Initially the government barred detainees from any legal rights, such as access to a court, the ability to file habeas petitions, or the right to a lawyer. That wall began to crumble in 2004, when the Supreme Court held that Guantánamo was not entirely free from oversight by federal courts, giving detainees access to lawyers and prompting a flood of habeas petitions from men saying they were innocent.

New tack. The Bush administration wasn't happy, so it attempted to create an alternative system of justice. It began closed-door hearings for all prisoners to determine whether they were in fact "enemy combatants." Critics called the process a sham, in part because detainees were often not allowed to see all government evidence against them. The administration also officially charged 10 detainees—including Hamdan—in a new military-commission system.

In 2006, Hamdan took his case to the Supreme Court, which ruled that the executive branch did not have the power to create military commissions without congressional backing and counter to international law. In response, the administration turned to Congress and pushed through the Military Commissions Act, creating a revamped system with more protections but far short of what many critics wanted. The act also barred detainees from filing habeas petitions for their release. In effect, then, they could not question their imprisonment but only the government's determination of their status as an "enemy combatant." And they could appeal only to a single forum—the conservative U.S. Court of Appeals for the D.C. Circuit.

This legal tug of war takes a twist this week in the high court. Detainees' lawyers will argue that their clients are protected by a basic constitutional guarantee and that without it the government has virtual carte blanche to hold prisoners without charge indefinitely. Indeed, one of the cases involves six Algerian-born men who had been arrested in Bosnia on suspicion of a terrorist plot. Though that nation's highest court ordered them released for lack of evidence, the men were immediately transferred to Guantánamo in January 2002. They've been held ever since.

Bush administration lawyers contend that Guantánamo's detainees should not fall within the reach of the Constitution and already "enjoy more procedural protections than any other captured enemy combatants in the history of warfare."

A legal win for the detainees could still be problematic. The justices could grant them more protections without granting full habeas rights, for example. Certainly, any favorable ruling would require a change in the current legal system. Some experts suggest creating a special national-security court in the United States to deal with criticisms of the military commissions. Others go further, recommending that Guantánamo be closed. (The government has already released more than half of the 770 detainees without charge.)

The president publicly supported that idea last year. But closure comes with its own contentious problems. A key sticking point: Some prisoners most likely would be transferred to a facility inside the United States, such as a military brig or a maximum-security prison. "A critical factor" in moving detainees to the United States "is can you do so in a way that is both legally durable and doesn't pose a major security risk," says Matthew Waxman, a Columbia University Law School professor and former deputy assistant secretary of defense for detainee affairs.

For now, the government is moving ahead with Hamdan's case. Regardless of the Supreme Court ruling, his lawyers are gearing up to challenge the equity of the military commission system, particularly its use of evidence—such as classified information and material derived from coercion—that would not be permitted in federal court. As for Gitmo's immediate future, it seems likely to remain in legal limbo.