Terror Detainees and US Law

A three-judge panel of the US Circuit Court of Appeals for the District of Columbia decided last week that since the detainees are not being held in the US, they do not enjoy the rights of due process and habeas corpus guaranteed by the Constitution.

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The court upheld an earlier ruling by a federal district court judge, who cited a World War II Supreme Court case involving Germans arrested in China. Attorneys acting on behalf of the detainees say they will appeal to the Supreme Court.

The 16 detainees for whom the appeal was filed were arrested in Afghanistan. The US government considers them "unlawful combatants" captured in the war on terrorism. They have no access to counsel and limited communications with their families in Kuwait, Britain, and Australia.

That's what bothers many. Under the Geneva Convention, POWs are released when hostilities end. But the war on terror could last for many years, and the US has not accorded the detainees POW status. While a few have been released, the rest are in limbo.

American values, built on English law going back to the 14th century, provide that the state must assure a judge that it has accorded a detained person due process. The Founding Fathers felt so strongly about this they put it into the Bill of Rights.

Since the detainees are under US military jurisdiction, it ought to be possible to set up a review tribunal under the military's legal system. A lawyer acting for a detainee could be a military officer, answering the administration's concern that sensitive information might be compromised.

This tribunal could examine the evidence against each detainee, and decide whether to release him. That would provide some reassurance that those the US continues to hold at Guantánamo belong there.