In “Civil Liberties and Enemy Combatants” (January 2005), attorney Harvey Silverglate took a critical look at the Supreme Court’s 2004 rulings hashing out the legal rights of suspected terrorists held in the United States and at Guantanamo Bay, Cuba. Silverglate warned that the Court’s decisions would not adequately protect the right to due process. Shortly after Election Day, President Barack Obama told 60 Minutes: “I have said repeatedly that I intend to close Guantanamo, and I will follow through on that.” After his inauguration he pledged to close the base within a year, which suggests that Gitmo will be shut down before all the legal issues concerning habeas corpus, due process, and the separation of powers are fully resolved.
During the Bush administration, the most significant legal case affecting Guantanamo detainees was Boumediene v. Bush, decided in July. The Court ruled that the detainees had a constitutional right to file habeas corpus petitions in U.S. courts. That decision sent the Boumediene petitioners, six Algerians who were detained at Guantanamo after being captured in Bosnia, back to the district court. In November U.S. District Judge Richard J. Leon ordered five of them released, finding that the case against them rested “exclusively on the information contained in a classified document from an unnamed source” and that “to allow enemy combatancy to rest on so thin a reed would be inconsistent with this court’s obligation.” Leon took the unusual step of ordering the release “forthwith” and urging the government not to appeal, writing that the prisoners had already endured “seven years of waiting for our legal system to give them an answer.”
Although the Bush administration has described Guantanamo detainees as the “worst of the worst,” in February 2006 Seton Hall law professor Mark Denbeaux and defense attorney Joshua Denbeaux analyzed information supplied by the Pentagon and found that less than half the inmates were determined to have committed a hostile act against the United States or its allies. Only 8 percent were accused of being Al Qaeda fighters.
In October 2008, U.S. District Judge Richard Urbina ordered the
release of 17 Chinese Uighur Muslims improperly detained as enemy
combatants. Because U.S. officials believe they’ll be persecuted if
they’re returned to China, Urbina ordered them released in the
According to the BBC, as of December the Pentagon had cleared as many as 60 detainees to leave the base but couldn’t release them because their home countries refused to allow them to repatriate. What will happen to the remaining 242 detainees when Guantanamo is finally closed remains unclear.