The cloud over Gitmo

‘GUANTANAMO,” IN popular parlance, refers both to the U.S. military prison on land leased from Cuba and the legal process (such as it is) made available to the 395 suspected terrorists and collaborators imprisoned there. In both senses, Guantanamo is an embarrassment to the United States.

President Bush, who once suggested that he wanted to close Guantanamo, shows no signs of doing so anytime soon, though Secretary of Defense Robert M. Gates recently told a House committee that he favored moving military trials for detainees to the United States. Although closing the Guantanamo facility certainly would remove a blot on the U.S. image, where prisoners are held is less important than whether they have a meaningful opportunity to assert their innocence.

Despite two U.S. Supreme Court decisions finding fault with the legal protections for Guantanamo detainees, they still are not guaranteed meaningful review in a civilian court.

Of the 395 inmates, the administration has indicated that it will prosecute no more than 80 using the military commissions established last year by Congress -- tribunals that need not operate in public and at which some coerced evidence will be admissible. The first trial under this system was short-circuited last week when David Hicks, an Australian, pleaded guilty to materially supporting terrorism. The rest of the detainees are entitled only to a determination of whether they are “enemy combatants.”

The population at Guantanamo -- once nearly 700 -- has always been a mixed bag. The facility has housed truly dangerous adherents of the Taliban and Al Qaeda along with wannabes, hangers-on and innocents caught up in the post-9/11 dragnet in Afghanistan.

Almost half of the original inmates have been sent to other countries, and others may be released. But the possibility that some will continue to languish at Guantanamo without adequate due process is a continuing scandal. The remedy is obvious: restoring the inmates’ right to contest their confinement in court by seeking the ancient Anglo-American writ of habeas corpus.

In 2004, the Supreme Court ruled that, under federal law, Guantanamo inmates could petition for a writ of habeas corpus, which forces the government to explain to a judge why it is holding a prisoner. But Congress has sought to block that avenue of appeal with legislation purporting to strip the inmates of habeas protection.

That mean-spirited mistake could be rectified in two ways.

The Supreme Court could rule that Congress has no right to strip Guantanamo inmates of habeas protection. The seeds of such a decision were sown in a high court ruling in 2004 in which Justice John Paul Stevens noted that habeas corpus is a right that predates the Constitution, “ throwing its root deep into the genius of our common law.” The Constitution allows Congress to suspend habeas corpus only “in cases of rebellion or invasion.”

Even better, Congress could undo its own error by enacting the Habeas Corpus Restoration Act of 2007, cosponsored by Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) and Sen. Arlen Specter (R-Pa.). The legislation would not be a “get out of jail free” card for inmates, whether obscure or “high value.” It would merely ensure that all detainees have their day in court.