More on the Guantanamo Detainees

On Friday, Judge Richard Leon of the United Stated District Court in DC issued an order holding that non-citizens have no legal basis for challenging their detention at Gitmo in federal court. For those of you who, like me, thought that the Supreme Court effectively held just the opposite in Rasul and Hamdi last year, think again ... perhaps.

I spent more time than I care to admit this evening writing a "considered legal analysis" of the decision, but blogspot promptly lost it entirely when I tried to post it. (Note to Google: Get this site fixed or it's going to be worthless!) So, you get the shortened version.

For a summary of the Supreme Court rulings on the detainee issues, see part three of this post. In Friday's decision (on remand from the Supreme Court) the district court held that, although the federal courts had jurisdiction over habeas corpus petitions filed by aliens held at Guantanamo, those aliens had no substantive basis under the Constitution, federal law, or international law, to challenge their detentions. This holding is awfully hard to square with either the language or the rationales of the Supreme Court decisions discussed in the earlier post referenced above, and my sense is that, when the Supreme Court ultimately gets the case again, it will reverse and find that a non-citizen, like a citizen, is entitled to "notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." See Hamdi v. Rumsfeld.

But to me, the more important question is why the Bush administration is still bucking this outcome. Remember, the Supreme Court has already agreed that, at lest where (as here) Congress has acted to specifically authorize military action, the right of the President to detain "enemy combatants" for the duration of the conflict (whatever that means) is inherent in the President's War Powers. So, the right to detain enemy combatants, essentially indefinitely, is no longer in dispute. The only remaining issue is whether alien detainees have thee right to challenge the government assertion that they are, in fact, "enemy combatants". Given that the Supreme Court has pretty narrowly construed the "process that is due", even to citizens in such a case, it really is hard to figure why the government would fight such a right. Unless, of course, the government really does contend that it has no constitutional (or moral) obligations toward anyone it (unilaterally) determines is a threat to national security.