The Deepening Detainee Disaster

Founded in 1998, the Center for Individual Freedom is a non-partisan, non-profit organization with the mission to protect and defend individual freedoms and individual rights guaranteed by the U.S. Constitution.

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It was less than two months ago that a bare majority of the Supreme Court ruled that enemy combatants held at Guantanamo Bay naval base could proceed with lawsuits challenging their detention in our federal courts.

Boy, what a mess the highest court in the land can create.

It was less than two months ago that a bare majority of the Supreme Court ruled that enemy combatants held at Guantanamo Bay naval base could proceed with lawsuits challenging their detention in our federal courts. In those seven weeks, not only has the entire legal landscape changed, but so has the real possibility that these suspected terrorists will be released -- back to battlefields abroad, or worse into our midst here at home.

All of this should have sparked massive outrage and prompted immediate action since things have turned around so quickly and dramatically. But most of America hasn’t been following just what the detainees and their lawyers have been seeking, and how the judges have been responding, in the aftermath of the High Court’s decision.

On June 11, the day before five justices ruled for the foreign detainees in Boumediene v. Bush, No. 06-1195, and Al Odah v. United States, No. 06-1196, the suspected terrorists held in Guantanamo had few legal options and even fewer realistic chances that they or their lawyers could end their detention and secure their release through the legal process.

Under laws passed by Congress and signed by the President, military judges initially determined if the suspected terrorists could continue to be detained, and military tribunals then tried those enemy combatants on any charges brought or crimes alleged by military prosecutors -- all with only minimal oversight, after-the-fact, by the federal courts.

But on June 12, the Court not only decided that the suspected terrorists had a legal right to have their detentions fully reviewed in federal court, but also that such a result was mandated by the U.S. Constitution -- specifically because of habeas corpus and due process. Essentially, five justices ruled that the federal courts had to be an integral part of the legal process for each and every detainee.

In and of itself, the ruling might not have changed too much in the short term. After all, litigation is notoriously slow, and just because the Supreme Court says you possess a right in theory doesn’t mean you get to exercise that right in practice in the days and weeks immediately after the decision.

Indeed, the detainees and their lawyers had learned that lesson in the months and years after the Supreme Court ruled in their favor on previous occasions. For them, those were pyrrhic victories, after which the enemy combatants remained detained at Guantanamo, and their litigation languished in the courts.

Nevertheless, for the vast majority of Americans, the fact that legal theory as announced by the Supreme Court was very different from practical reality as experienced by the detainees and their lawyers didn’t matter much, and probably was a good thing in the end. Quite frankly, Main Street USA neither believed suspected terrorists should be nor wanted them to be released.

However, when the Supreme Court ruled for the detainees this last time, the five justices made it clear that the enemy combatants’ practical reality needed to change and improve quickly to reflect the Court’s legal theory. As Justice Kennedy brusquely and bluntly instructed in the decisions: “[T]he costs of delay can no longer be borne by those who are held in custody. The detainees … are entitled to a prompt habeas corpus hearing.” Not only did the detainees and their lawyers receiving those instructions hear them loud and clear, so did the judges presiding over those cases.

Even though the news has been generally overwhelmed by election year coverage, it is not an exaggeration to say that the continuing legal assault mounted by the detainees and their lawyers could fairly be described as their D-Day. Not only are the detainees and their lawyers pressing for action in all of their hundreds of cases pending before different judges in multiple courts, but they’re demanding that action now, not later.

What’s more, the judges are indicating that they will act extremely quickly -- some might even say recklessly. Judge Thomas F. Hogan, who is coordinating hundreds of detainee cases, told an overflowing courtroom in early July that he “was going to move these cases forward, and not in the usual course of business… The government has to set every other case aside … and get these [enemy combatant] cases moving first.”

Two days later, Judge Richard L. Leon, who retained another set of detainee cases, emphatically vowed that those cases would be “resolved this year!” In fact, according to long-time Supreme Court reporter Lyle Denniston, Judge Leon even “promised to make … rulings swiftly from the bench, without writing opinions ‘tied up with bows and ribbons’” in order to meet his own self-imposed deadline.

The government is desperately scrambling to handle the onslaught, which has gotten out of control, telling the judges that the Justice Department is trying to hire dozens of lawyers for the detainee cases. For their part, the detainees and their lawyers are trying to open up new legal fronts, and have become even more aggressive in those already open, to keep the pressure on and clinch victory.

Perhaps the best example of this new aggression came last week, when lawyers for a Chinese Muslim detainee held in Guantanamo, Huzaifa Parhat, asked a federal judge to release him immediately -- not back to his homeland, but into ours here in the area of Washington, D.C., USA! And that’s just the tip of the iceberg, with the detainees and their lawyers making numerous demands, including that they be privy to classified national security information to make their cases.

Even though both Attorney General Michel B. Mukasey and President George W. Bush have asked, even pleaded, for Congress to intervene and enact a revised and streamlined legal process for the detainees, everyone agrees that is unlikely. What is becoming more and more likely is that federal judges may decide that at least some detainees have finally won, and are entitled to be released. So it may really be America that is someday soon left with the mess the Supreme Court has created and the detainees and their lawyers are exploiting. God save the United States, indeed.