At High Court They Talk; At Gitmo They Wait
At the Supreme Court yesterday morning, they talked about jurisdiction. They talked about habeas corpus. They talked about remands. They talked about the Detainee Treatement Act and the Military Commissions Act. They talked about Spanish sailors and ancient English case law.
They talked and they talked and they talked. And, if you weren't listening closely, you would have sworn they were talking about some hypothetical problem affecting some theoretical group of people somewhere. It was all so sterile and academic -- as if no one really wanted to address or even think about the real reason they were there.
Two of those reasons are Murat Kurnaz and Mustafa Ait Idr. They are among the Guantanamo detainees who, for half a decade now, have suffered the effects of the legal terms and concepts floated about by the justices and the two opposing counsel in the latest iteration of the "enemy combatants" case. They are the symbols of a short-sighted and self-destructive series of policy choices our executive branch officials and their Congressional colleagues have made since Sept. 11.
Kurnaz, as The Post reported yesterday, was deemed innocent -- proven so in 2002 to the satisfaction of U.S. intelligence officials -- until he was not. He is still in detention down in Cuba.
Idr suffered his own Kafkaesque indignity during this shameful interrogation.
They know what the White House and Pentagon mean when they say they are giving more than their fair share of "due process" to "enemy combatants."
And they're far from the only detainees whom own military has determined have nothing to do with terrorism. Seton Hall Law Professor Mark Denbeaux and his attorney son, Joshua Denbeaux, studied hundreds of Combatant Status Review Board letters Among their findings: "Fifty-five percent of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies... Only 8 percent of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40 percent have no definitive connection with al Qaeda at all and 18 percent have no definitive affiliation with either al Qaeda or the Taliban."
This is the underreported truth about Guantanamo. This is what our politicians and judges know or should know about the detainees whose fates they are deciding.
Having absorbed the transcript of yesterday's hearing, I hereby declare that I have no idea what the court will do. Justice Anthony Kennedy, the swing vote, didn't seem hot-to-trot over the government's arguments. But what this means I couldn't tell you. I can't see the court directing the other two branches to finally "fix" the detainee problem by opening up civilian courts to the prisoners. But I can't see the court signing on to all the sweeping rights restrictions of the Commissions Act. There will likely be plenty more talking before Kurnaz and Idr get to see things made right.
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