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Legal Limbo
Detentions hurt U.S. credibility
Editorial
The Sacramento Bee
June 7, 2006
Nearly 500 detainees from more than 40 countries have been kept by the United States at Guantanamo Bay, Cuba, since they were captured, primarily in Afghanistan in 2001 and 2002. The president treats them neither as prisoners of war nor as criminals. They have fallen into a legal black hole, in detention indefinitely, with no legal status.
The U.S. Supreme Court has taken up the issue and expects to rule in the Hamdan v. Rumsfeld case by the end of this month. Chief Justice John Roberts recused himself, so eight justices will be sitting in judgment.
In an amazing May 4 interview, President Bush said, "I very much would like to end Guantanamo. I very much would like to get people to a court. And we're waiting for our Supreme Court to give us a decision as to whether the people need to have a fair trial in a civilian court or in a military court." He insisted, "They will get a trial."
That recognition is late. Until now, the president has unilaterally attempted to find every way possible not to apply existing U.S. law and precedent to the detainees.
In past conflicts -- including with stateless, irregular, lawless, unconventional Barbary pirates who terrorized shipping in the Mediterranean Sea and Atlantic Ocean in the early 1800s -- the United States made a swift determination of detainee status.
The United States prosecuted detainees in the civilian criminal justice system, seeking to punish them for criminal acts. Or the United States held detainees as prisoners of war, following the laws of war, to prevent them from returning to the field of battle and taking up arms again -- freeing them when hostilities ended.
The Bush administration has chosen not to exercise either of these options.
Instead, the president is inventing a wholly new system, improvising procedures based loosely on the U.S. military tribunal system. Military tribunals traditionally are an emergency measure used in a combat zone or occupied territory by a commander in the field to try war crimes or enforce justice in occupied territory when no other courts were open.
In this case, the proposed Bush ad hoc tribunals would occur years after capture, thousands of miles from any battlefield, with none of the procedural protections found in past military tribunals enforcing the laws of war.
The Supreme Court will decide whether special, ad hoc military tribunals, with the president making up rules as he goes along, are constitutional. Whatever the court decides, Bush needs to get fair trials under way, so he can end the detention camp at Guantanamo, as he has said he wants to do.
The longer this legal black hole exists, the larger grows the black mark on U.S. credibility.
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