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The Rights of the "Unlawful Combatants"

This is a New York Times editorial from last week. I'm reproducing it in its entirety because I think it's important to do so:

Forsaken at Guantánamo

It has been 14 months since the first prisoners from the Afghanistan war were taken to a naval base at Guantánamo Bay in Cuba. The Bush administration says it can hold the detainees indefinitely, without allowing them access to family or legal counsel. Yesterday, a federal Court of Appeals threw out a challenge by some of those detainees to their confinement. The administration and the court are wrong. The detainees may not have the same rights as American citizens, but they are entitled to more due process than they are being given.

The United States military is holding hundreds of prisoners accused of Taliban or Al Qaeda ties at Guantánamo. Many were seized in the heat of battle, but others were turned over in exchange for rewards or bounties. Advocates for the prisoners maintain that one-third or more are being held on the basis of bad intelligence, or simply for being in the wrong place at the wrong time.

The Guantánamo detainees are in legal limbo. The Bush administration refuses to designate them prisoners of war, a label that would entitle them to immunity from prosecution for acts committed during a lawful war, among other things. Nor is the administration treating them as ordinary criminal defendants, entitled to know the charges against them and allowed to contest their confinement in court. The government's position is that the detainees are "unlawful combatants" who can be held incommunicado indefinitely.

Whatever their legal status, the Guantánamo detainees must be given a chance to contest their confinement. Those who were wrongly caught up in the military's net must have an opportunity to make their case.

As noncitizens captured in wartime, they may not have the right to have their claims heard in United States courts. But they must be given some forum, like a military tribunal, in which to contest their continued imprisonment. The rules of evidence, and the standard of proof for holding them, may be different from those in ordinary criminal trials. But there must be rules, and at least some individualized proof, for the detentions to be proper.

The ruling, from the United States Court of Appeals for the District of Columbia Circuit in a suit filed by Kuwaiti, British and Australian detainees, said that the court lacked jurisdiction to hear claims by the Guantánamo prisoners who contend that they are being wrongfully held. It is a disturbing decision that gives the administration essentially unchecked power to imprison foreigners. The court abdicated its role by not exercising any oversight in this important matter.

In refusing to let the Guantánamo detainees challenge their confinement, the administration is trampling on their rights. It is also damaging America's reputation for fairness. The administration should rethink its policies, and the Supreme Court should reverse yesterday's unfortunate decision.

It would be easy to forget about these men. I presume that many of them were in fact members of Al Qaeda, or Taliban soldiers fighting on their behalf. Al Qaeda members committed a heinous act of terrorism, and the Taliban refused to hand them over. We were within our rights to pursue and destroy both organizations, and the world is better off without them (though the extent to which we are free of these movements is certainly an open question).

Having said that, none of this changes the fact that these men -- however grave their alleged crimes -- are human beings with certain rights. If they are prisoners of war, then they must be treated in accordance with the guidelines to which we have agreed for the treatment of such prisoners, including contact with the outside world and release after the end of hostilities. If they aren't prisoners of war, then they must be treated in accordance with our own laws for criminal suspects, including the right to legal counsel and the right to be presumed innocent until proven guilty. Instead of following either of these paths, the Bush administration has invented a new legal concept to describe the prisoners, "unlawful combatants," which it claims frees it from any of these obligations, and then has used the peculiar territorial status of the US base at Guantánamo to keep the detainees out of the reach of US courts.

Watching the behavior of governments over time demonstrates that small programs targeted at a few often grow far beyond their originally promised purposes. If we allow our government to continue to deny the rights of hundreds of prisoners in Guantánamo, and justify this on the grounds that they are terrorists, we may wake up one day to find that it is no longer hundreds, but thousands. We may wake up one day to a frontal assault on the Bill of Rights and belatedly realize that it began here and now.

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