Rights for Gitmo Prisoners; Protected in War and Peace

Article excerpt

Byline: Nat Hentoff, THE WASHINGTON TIMES

From the beginning of this nation's war on terrorism, the administration has claimed that the commander in chief, the president, is authorized to determine how the "enemy combatants" in American custody are to be treated without any involvement by Congress or the courts. But some of the courts are disagreeing.

In June 2004, Supreme Court Justice Sandra Day O'Connor, speaking for the majority of the Court, reminded the president: "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." And on Jan. 31, U.S. District Judge Joyce Hens Green said of the noncitizens held at Guantanamo Bay that, "although this nation unquestionably must take strong action under the leadership of the commander-in-chief to protect itself against enormous and unprecedented threats, that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over 200 years." If we can keep the Constitution fully functioning, I predict Judge Green's ringing statement will be quoted in law books, and hopefully schoolbooks, for generations to come.

The detainees at Guantanamo Bay, she ruled, have been denied these basic rights because they've been deprived of representation by lawyers, and cannot see some of the vital evidence against them during the Combat Status Review Tribunals at Guantanamo Bay, evidence that could keep them in prison for the rest of their lives.

Judge Green's decision is being appealed, and will almost certainly end up in the Supreme Court, which left loose ends in its June 2004 decisions on detainees' rights (Hamdi vs. Rumsfeld and Rasul et al, vs. Bush).

The Justices' imprecision on how detainees can exercise their due-process rights left blanks while denying the president a blank check.

Many critics of Judge Green's decision agree with a lead editorial in the Feb. 3 Washington Times ("Enemies in court"), which calls her ruling "wrongheaded," and noted approvingly that "the president and the U.S. military have determined on the basis of intelligence information that the suspects at Guantanamo are enemy combatants and are therefore undeserving of protection by the U.S. Constitution." U.S. District Judge Richard Leon, in a Jan. 19 decision that Judge Green's subsequent ruling contradicted, came to the same conclusion as The Washington Times. Judge Leon threw out requests by seven alleged terrorists for court review of their detention, concluding that, as foreigners detained outside the United States, the suspects had no rights under the Constitution.

However, it requires a considerable leap of faith in the government, in view of its record on prisoners' due-process rights, to believe in the credibility of the intelligence information that put these prisoners at Guantanamo Bay. …