Earl Evleth

Was it wishful thinking? On Thursday the Associated Press reported
that, according to sources it did not name, "the Bush administration
is nearing a decision to close the Guantanamo Bay detainee facility
and move the terror suspects there to military prisons elsewhere." The
White House quickly denied the rumor, and, for good measure, on Friday
the Pentagon announced that Guantanamo had admitted its first new
detainee in months: Haroon al-Afghani, a commander from the al Qaeda-
affiliated terror group Hezb-i-Islami.

The AP's impatience to write the final chapter of the Guantanamo story
is of a piece with the way news organizations generally have told the
story. Although the Supreme Court has granted some rights to
detainees, it has been remarkably restrained in doing so. But
journalists have falsely portrayed Guantanamo as an affront to the
Constitution and international law.


Watchtower at Guantanamo.
Perhaps the most striking example was the New York Times's coverage of
Hamdan v. Rumsfeld, which the court decided a year ago this week. "The
decision was such a sweeping and categorical defeat for the
administration that it left human rights lawyers who have pressed this
and other cases on behalf of Guantanamo detainees almost speechless
with surprise and delight, using words like 'fantastic,' 'amazing' and
'remarkable,'" correspondent Linda Greenhouse exulted. She opined that
there was "no doubt" the ruling represented "a historic event, a
defining moment," and likened it to U.S. v. Nixon, the 1974 case in
which the court unanimously ordered the president to turn over the
Watergate tapes.

Nixon resigned 15 days after that decision. A year after Hamdan, it is
safe to say that its impact has been rather less dramatic. While the
court, by a vote of 5-3, did hand Salim Ahmed Hamdan, Osama bin
Laden's personal driver and bodyguard, a victory on key points, Ms.
Greenhouse's purple prose belied the narrow grounds on which it did
so. Less than four months after Hamdan, Congress passed the Military
Commissions Act, which effectively undid the ruling. Congress had this
power because the Supreme Court has not extended a single
constitutional right to alien enemy combatants.

Hamdan dealt with two legal questions: whether detainees have the
right to challenge their captivity by petitioning a court for a writ
of habeas corpus, and whether the military commissions established to
try detainees for war crimes passed muster under U.S. and
international law.

The court had ruled in Rasul v. Bush (2004) that detainees had the
right to file habeas petitions. But it rested that conclusion on
statutory, not constitutional, grounds -- that is, it found that
Congress had conferred this right on the detainees. Congress therefore
had the authority to take it away, and it did so by passing the
Detainee Treatment Act of 2005, which stripped federal courts of
jurisdiction to hear Guantanamo detainees' habeas petitions.

But in Hamdan, the high court held that the 2005 act did not apply
retroactively, so that habeas proceedings already under way could
continue. The Military Commissions Act removed this ambiguity and
ordered a stop to all habeas petitions. An appellate court upheld this
provision in February 2007, and in April the U.S. Supreme Court
declined to hear a challenge to that ruling. The Justice Department
has petitioned for the dismissal of still-pending habeas claims.

In overturning the administratively created war-crimes commissions,
the Supreme Court found that detainees are entitled to some
protections under the Geneva Conventions. It did not afford them the
privileges enjoyed by legitimate prisoners of war -- those who wear
uniforms, carry weapons openly and otherwise comply with the rules of
war. Instead, it ruled that they have more-limited rights under
Geneva's Common Article 3, which applies to conflicts "not of an
international character." This originally meant civil wars, but the
court imaginatively reasoned that since al Qaeda is not a nation, its
war against America is not "international."

Yet the justices granted the detainees only one specific right under
Common Article 3: the right to have any criminal charges heard by a
"regularly constituted court" -- one created by an act of Congress.
The high court has not adjudicated the legality of the legislatively
created commissions, but it seems unlikely to rule against them. Four
justices in the Hamdan majority joined Stephen Breyer's concurrence,
which expressly invited Congress to authorize military commissions.

To be sure, legal obstacles remain. Earlier this month two military
judges dismissed charges against Hamdan and another detainee, on the
pedantic ground that administrative tribunals had designated them
enemy combatants, not unlawful enemy combatants -- notwithstanding
that they clearly meet the Military Commissions Act's definition of
unlawful combatants.

Some politicians have also undertaken efforts on behalf of enemy
fighters. Senate Democrats, joined by Republican Arlen Specter, have
introduced legislation that would restore habeas rights to Guantanamo
detainees, although this is unlikely to become law as long as George
W. Bush is president.

Colin Powell would go even further. "I would close Guantanamo, not
tomorrow, but this afternoon," the former secretary of state told
NBC's Tim Russert earlier this month. "I'd get rid of the military
commission system and use established procedures in federal law or in
the manual for courts-martial."

Mr. Powell claimed that "I would not let any of [the detainees] go,"
but his proposal would inevitably have that effect. Once inside the
criminal justice system, detainees would become defendants with full
constitutional rights, including the right to be charged or released,
the right to exclude tainted evidence, and the right to be freed
unless found guilty of a specific crime beyond a reasonable doubt.

Legitimate prisoners of war enjoy no such rights. The primary purpose
of holding enemy combatants during wartime is not punitive but
preventive -- to keep them off the battlefield. No one disputes that a
country at war can hold POWs without charge for the duration of
hostilities. Justice John Paul Stevens, writing for the majority in
Hamdan, reaffirmed the government's authority to do the same with the
unlawful combatants at Guantanamo.

By granting constitutional protections to detainees, Mr. Powell's
proposal would endanger the lives of American civilians. It would also
afford preferential treatment to enemy fighters who defy the rules of
war. This would make a mockery of international humanitarian law.

In the long run, it could also imperil the civil liberties of
Americans. Leniency toward detainees is on the table today only
because al Qaeda has so far failed to strike America since 9/11. If it
succeeded again, public pressure for harsher measures would be hard
for politicians to resist. And if enemy combatants had been
transferred to the criminal justice system, those measures would be
much more likely to diminish the rights of citizens who have nothing
to do with terrorism.

By keeping terrorists out of America, Guantanamo protects Americans'
physical safety. By keeping them out of our justice system, it also
protects our freedom.