EDITORIAL DESK

The Court and Guantánamo

( Editorial ) 556 words

More than 600 detainees are being held in the American military base at Guantánamo Bay, Cuba. Most were captured in Afghanistan while American troops were fighting the Taliban forces there. Their advocates say many were simply in the wrong place at the wrong time, or innocent men whom bounty hunters handed over as terrorists in order to claim rewards. The cases the court is hearing involve Kuwaiti, British and Australian nationals whose families say they were not involved with Al Qaeda or engaged in military action against the United States.

The detainees are seeking only the most basic elements of due process: to be informed of the charges against them, to meet with their families and lawyers, and to have a forum for contesting their imprisonment. They do not claim a right to have the American court systems review their cases. A military tribunal would be sufficient.

The administration argues that as noncitizens being held outside the United States, the detainees have no right to be heard in federal court. But the law gives the courts jurisdiction over ''all civil actions arising under the Constitution, laws, or treaties of the United States,'' which certainly describes these cases. The federal habeas corpus statute also gives anyone held by the government, which the detainees certainly are, the right to challenge their confinement. Even if the government's narrow view of jurisdiction were right, it is irrelevant. Guantánamo, as the Navy concedes on its own Web site, ''for all practical purposes, is American territory.''

International law also strongly supports the detainees. The International Covenant on Civil and Political Rights, following American and British legal traditions, states that ''anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court.''

Legal arguments aside, the Guantánamo policies are a tragic mistake. They are being followed closely abroad, where they are greatly harming America's reputation for fairness. And -- as a group of retired American military officers argue in a friend-of-the-court brief -- they will come back to haunt us when Americans are taken captive.

Most important of all, the treatment of the Guantánamo detainees is not true to America's guiding principles. ''The practice of arbitrary imprisonments,'' Alexander Hamilton observed in Federalist No. 84, has been ''in all ages'' one of ''the favorite and most formidable instruments of tyranny.'' Much has changed since Sept. 11, 2001, but one thing that has not is this nation's commitment to freedom, and to the rule of law.

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