Today the military tribunals at Guantánamo Bay -- which were halted last June by the Supreme Court's landmark decision in Hamdan v. Rumsfeld -- will recommence under flawed new rules authorized by Congress in the disgraceful Military Commissions Act.
Monday's arraignment of Australian David Hicks may well mark the beginning, after a series of false steps, of a sustained effort to prosecute at least some of the Guantánamo detainees for war crimes. And yet, there's a definite feeling here that we might instead be involved in a kind of prolonged endgame, and that we'll never see the dozens of prosecutions that have long been promised by military prosecutors.
That feeling was certainly strengthened by Friday's New York Times, which revealed in a front-page story that even Secretary of Defense Robert Gates believes that " legal proceedings at Guantánamo [will] be viewed as illegitimate" by the rest of the world, and that the prison should be shut down as soon as possible.
It is a remarkable development. And while Gates's view that Guantanamo should be closed earned the headline, even more revealing – and far more damning – was his statement that the United States is "trying to address the problem of how do we reduce the numbers at Guantánamo and then what do you do with the relatively limited number that would be irresponsible to release." (Emphasis added.)
The plain and undeniable import of those words is that the Secretary of Defense – who oversees detention operations at Guantánamo – does not consider the majority of the detainees here to be a risk to America. We've come a long way from the days when Gates's predecessor cavalierly branded all of the detainees "the most dangerous, best-trained vicious killers on the face of the earth."
As always, it will not be David Hicks alone who faces trial on Monday, but the Military Commissions themselves. Hicks's case presents issues that are by now familiar at these tribunals: He has raised disturbing allegations of torture at the hands of his U.S. captors; there are serious questions as to whether the chief military prosecutor committed sanctionable misconduct when he invoked the specter of prosecution against Hicks's military defense counsel for statements he made about the unfairness of the tribunal system.
And there are geopolitical machinations taking place in the background that are likely to have more impact on Hicks's fate than these proceedings. Indeed, the Australian Prime Minister has stated publicly that Hicks's arraignment has been expedited and his charges reduced because of the Prime Minister's lobbying of Bush Administration officials, and it's difficult to find anyone here who doesn't believe that Hicks will be sent back to Australia before his trial is completed.
Even as David Hicks proceeds for the time being through a system whose legitimacy the Secretary of Defense has rightly questioned, hundreds of other men at Guantánamo – men who have never been, and never will be, charged with any crime – await a far more critical judicial determination.
The Supreme Court will soon decide whether (and when) to hear a challenge to the Military Commissions Act, which purported to strip the bedrock right of habeas corpus – the basic right to challenge unlawful detention in court – from all detainees held here. It will be the third time the Court has been called upon to restore the rule of law to a remote prison that was created expressly to escape it. If the Court once again repudiates a detention policy wholly at odds with our values and tradition, it may well strike the final blow against this shameful enterprise that has done more harm to America's image – and security – than the dangers it was intended to guard against.
-- Ben Wizner, Staff Attorney, American Civil Liberties Union
TAKE ACTION: ACLU activists are joining the renewed call to close Guantánamo and end this sad chapter in civil liberties and the history of our country. Add your voice by writing to your Members of Congress today.