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<font size=3><b><a href="??">Comment by
</a><a href="http://ccrjustice.org/about-us/staff-board/kadidal,-shayana">
Shayana Kadidal, Sr. Attorney, Guantanamo Global Justice
Initiative<br><br>
</a></b>
<a href="http://news.google.com/news?btcid=740f0d3fbe46928c" eudora="autourl">
http://news.google.com/news?btcid=740f0d3fbe46928c<br><br>
</a></font><font size=2>Six and a half years ago, we at the Center for
Constitutional Rights brought the first case in federal court on behalf
of detainees held at Guantanamo. At first, the administration
successfully argued that the detainees were in a legal black hole,
without any right of access to the federal courts to challenge whether
they were lawfully held. Two years later, the Supreme Court ruled that
our clients’ cases could go forward, but Congress attempted to overturn
the decision with a pair of statutes, the Detainee Treatment Act and the
Military Commissions Act.<br><br>
Today, the Supreme Court ruled that the part of the Military Commissions
Act that attempted to block the federal courts from hearing the claims of
our clients at Guantánamo was unconstitutional.<br><br>
Justice Kennedy, the opinion’s author, has a reputation for pragmatism,
and it shows in today’s opinion, which is rooted in a sound practical
sense. The decision today allows courts to do what they do best: to
decide whether the government has the right to hold someone in detention,
sorting out claims of factual innocence by weighing the
evidence.<br><br>
What will the next steps be? We hope that the lower courts will quickly
move to hold hearings in the 200-odd pending individual habeas corpus
cases where detainees are challenging their indefinite detention without
charges. Of the roughly 770 men held at Guantánamo since the base opened,
over 500 have been released; under 20 have been charged. The military
says it will only charge up to 80 with offenses to be tried by military
commission. That leaves almost 200 men who the government has no
intention of ever charging; without today’s decision they might have
remained in detention forever without ever having a real chance to argue
for their release before an impartial court. With habeas you never would
have had these men – so many of whom have been officially cleared for
release by the military – locked up and abused because no court was
watching. We believe the majority of them will be released once the
executive is forced to show up in front of a federal judge and justify
their detention with hard evidence.<br><br>
What will the implications be for the pending military commissions cases?
I suspect the impact will be minimal. It is likely those trials will
continue to progress at their current halting pace. Today’s opinion only
means that the defendants in those commissions proceedings – the handful
of men charged so far – may commence parallel proceedings arguing that
they shouldn’t have ever been detained in the first place.<br><br>
Other significant issues may be litigated as well: most detainees are
being held in solitary confinement, including dozens who are cleared for
release; most are losing their minds as a result. In habeas we should be
able to argue for more humane conditions of confinement. Many detainees
are cleared for release to countries where they may face torture; these
men are basically in the position of refugees and countries that can
offer them asylum will have to be found before they can be
released.<br><br>
Major General Jay Hood, former commander at Guantanamo, admitted to the
Wall Street Journal that “[s]ometimes we just didn't get the right
folks,” but innocents remain at the base because “[n]obody wants to be
the one to sign the release papers. ... there's no muscle in the system.”
The federal courts are supposed to be that muscle. Today’s decision
ensures that they will be.<br><br>
Ultimately, the administration’s strategy with Guantanamo was to run out
the clock and leave its mess – much like the war in Iraq – to the next
president to clean up. Today’s decision – a historic victory for
executive accountability to the courts – will, we hope, prevent this
administration from doing so.<br><br>
<br><br>
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