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February 23, 2007
The New York Review of Books has an article on Guantánamo Bay entitled 'No Exit' by Joseph Lelyveld. This was republished by the Australian Financial Review in today's 'Friday Review' section but it is not online.
Lelyveld says that the US Supreme Court has also cautiously asserted its jurisdiction on detention issues, picking apart arguments made on behalf of an executive branch that hubristically called on the Court to stand aside and, essentially, let the President reign. He adds:
But—as the remaining 395 captives at Guantánamo enter the sixth year of their imprisonment without a single one of them having been put on trial—the question of whether we're prepared to hold terrorist suspects without charge for the rest of their natural lives has yet to be squarely addressed by either Congress or the courts. Decisions on detention issues have been handed down and laws have been passed. Some of these may now be revisited by the incoming Democratic Congress—in particular, the recent Military Commissions Act, which, among other things, denies non-US citizens who have been arrested and held in prison recourse to the writ of habeas corpus. But the question of indefinite detention itself —which might be construed as a core issue—hangs over our discussions like a far-off thundercloud, darkening a little with each passing year and each report of another suicide attempt at Guantánamo.
Would-be combatants who have merely been trained as well as those picked up in the vicinity of a battlefield—can be held in wartime until the end of hostilities isn't in itself novel or controversial. What's new in the current conflict, as it pertains to al-Qaeda and those detainees who are alleged to be its followers, is that no one can imagine the armistice or surrender that would signify an end to this war. In these circumstances, or so it now seems, indefinite could prove to be synonymous with endless; in effect, it could signify a life sentence.
Lelyveld. says that so far there has been no sign that the new Democrat Congress cares to wrestle with the premise that it's legitimate to hold prisoners indefinitely without charge and to leave them to await the end of a war that shows no sign of ending.
The Military Commissions Act, which was a direct Republican response to Hamdi v. Rumsfeld case, barred access to federal courts on habeas petitions by foreigners who had been designated as "illegal alien combatants." A Democratic-led Congress can only succeed in removing that bar by overriding a presidential veto. Is there enough votes for that?
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