Tug of War Over Gitmo

Key cases this week signal the strain over prisoners' rights


Guards guide a shackled captive at Gitmo's prison.

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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.