There has been much speculation about the Supreme Court’s decision not to hear an appeal from a group of Guantánamo Bay inmates until they have exhausted their legal options. Was the court signaling that the appeal had no merit? Were the court’s liberals waiting for a better chance to review President Bush’s unconstitutional detention system for “illegal enemy combatants”?
Whatever the justices’ intentions, we saw one clear message in their decision, and we hope that Nancy Pelosi, the House speaker, and Harry Reid, the Senate majority leader, saw it too. It is past time for Congress to undo the grievous damage done by President Bush’s abuse of the Constitution when he created his system of secret prisons and public internment camps to detain selected foreigners indefinitely without any real legal challenge.
In the months since Congress passed the Military Commissions Act of 2006, the administration has pushed ahead with the show trials permitted by the law. Each development in that courtroom brings fresh evidence of how urgent it is for the courts to strike down that law and for Congress to rewrite it.
The plea bargain: Last month, after being held at Guantánamo for five years, David Hicks, an Australian citizen, pleaded guilty to a single, relatively minor charge in exchange for his freedom. This deal should infuriate any side of the debate.
Americans who support Mr. Bush’s policy on prisoners accepted its premise: that the people in Guantánamo are so dangerous that letting any out will compromise American security. If an injustice were committed here or there, Americans would just have to grit their teeth. How does that square with allowing Mr. Hicks to go home and quickly go free? Worse, the plea bargain seemed timed to help Prime Minister John Howard, a Bush ally whose inaction on the case was becoming a re-election issue in Australia.
For Americans, like us, who are sickened by the Guantánamo prison, the Hicks bargain was emblematic of its lawless nature. If there was evidence that Mr. Hicks was a terrorist, we have yet to see it. He was declared an illegal combatant by a kangaroo court created to confirm that designation, which had been applied long before. He was denied a lawyer and censored by the court when he tried to pursue abuse charges. Under his plea bargain he gave up his right to sue, repudiated his own accounts of abuse and was even barred from talking to the news media about his experience.
To understand why Mr. Hicks still found that sort of deal attractive, remember that once a person is declared an “illegal enemy combatant,” he faces a lifetime in detention. He might be released by a “combatant status tribunal,” but his chances are very slim, and the process mocks civilized standards of justice. If the prisoner is one of the very few that the Pentagon plans to charge with a crime, he will be brought before a military tribunal. That court may use evidence obtained through hearsay, coercion or even torture. If convicted, there is little likelihood that he will be released after serving his time. If acquitted, he just goes back to being an illegal combatant who can be held for life.
The censored confession: On March 14, Abd al-Rahim al Nashiri, accused of the bombing of the U.S.S. Cole and other crimes, went before a combatant status tribunal. According to a transcript, Mr. Nashiri said he was tortured. But it is Mr. Bush’s policy that no prisoner may allege torture in public, so this is what appeared in the transcript:
PRESIDENT (of the tribunal): Please describe the methods that were used.
DETAINEE: (CENSORED) What else do I want to say? (CENSORED) There were doing so many things. What else did they did? (CENSORED) After that another method of torture began. (CENSORED) They used to ask me questions and the investigator after that used to laugh. And, I used to answer the answer that I knew. And if I didn’t replay what I heard, he used to (CENSORED).
Officials defended this censorship by arguing that interrogation methods are so secret that they cannot be discussed, even by the prisoner. But they also said that Al Qaeda members are trained to claim torture and that Mr. Nashiri lied. If so, why censor the transcript? His answers can’t help Al Qaeda. Tragically, the most likely answer is to spare United States intelligence agents and their bosses, who could face charges if the Military Commissions Act is ever repealed or rewritten. The law gives a retroactive carte blanche to American interrogators for any abuse they may have committed.
The lawsuit: The case the Supreme Court turned down this week was filed by Guantánamo inmates who contend that their detention was illegal and that the Military Commissions Act is unconstitutional. We agree. Holding people without evidence or charges or trial is barbaric, as is denying them the right to challenge their detention in a real court, a right generally referred to as habeas corpus.
Both violate the Constitution, and the court should strike down the Military Commissions Act of 2006, and the Detainee Treatment Act of 2005, which limits avenues for appeal. But Congress approved the military commissions, left in place the combatant status review tribunals and suspended habeas corpus. Mr. Reid and Ms. Pelosi have a moral obligation to lead the way to righting these wrongs.