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Congress’s Guantanamo Burden





The Guantanamo population has never been a monolith. Some detainees the military has held at the base are extremely dangerous — proud military enemies of this country whom no society with an instinct for self-preservation would set free. One, for example, told a review panel: “I do pose a threat to the United States and its allies. I admit to you that it is my honor to be an enemy of the United States. I’m a Muslim jihadist.” This detainee went on to say that he was “not one of [Osama bin Laden’s] men and not one of his individuals. I am one of his sons. I will kill myself for him and will also give my family and all of my money to him.” Other detainees admit facts that clearly render them subject to detention under the laws of war, though they may not be al-Qaeda or Taliban terrorists.

The majority of detainees, meanwhile, either deny the allegations against them — with varying degrees of plausibility — or choose not to address them in the primitive review mechanisms the government has set up. These detainees often present complex and murky issues of fact that any adjudicatory system has to resolve.

Guantanamo also houses a substantial group of detainees whom the government has long since cleared for release or transfer but whom it cannot send home for fear they might be tortured and whom other countries are not itching to take in. Some of them pose little or no threat to the United States. Additionally, the base houses a substantial group the military intends eventually to put on trial for war crimes.

The current system — at least in public — labels all these groups “enemy combatants.” But they present different problems. What’s more, because the government’s review processes are so anemic, the Supreme Court yesterday showed those processes little deference, and one can expect that lower courts, in the habeas cases this decision will bring back to life, will show little more to the detention decisions that resulted. A better system would cause courts to show more respect when habeas review rolls around.

A reasonable system would do as much adjudication as possible in public, creating for each detainee a rigorous set of factual findings and a record evaluating the decision to detain. For detainees of the type held at Guantanamo, whom the laws of war fit uncomfortably, the detention decision ought not to reside in the military but in a civilian federal court, assigned by statute to assess whether each detainee meets a legislatively prescribed standard.

In this proceeding, detainees should have real rights, starting with representation by competent counsel, cleared to see all evidence — even classified evidence — against their clients. Detainees themselves need a more detailed summary of the evidence against them and a more meaningful opportunity to present evidence of their own. Judicial supervision of these decisions must persist as long as the detentions persist, ensuring that the detentions are humane and remain necessary.

Congress, in short, needs to design a system open enough for the public to know how scary some detainees really are and adversarial enough to credibly separate the wheat from the chaff.

If it fails again to create such a system, the result of yesterday’s decision will not be a resolution of the dispute over Guantanamo. It will be endless litigation over the hard questions all of these court battles have managed so assiduously to avoid: Whom does America want to detain outside its criminal justice apparatus? What procedures does it want to employ for evaluating a given captive? And what rights should that captive have?

The court has narrowed Congress’s latitude to answer these questions, but it thankfully has not relieved the political system of its burden. Congress cannot afford to shirk that burden any longer.

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