The Best Only for the Worst


Under the military commission bill passed by the Senate yesterday, a version of which the House already has approved, the "worst of the worst"—detainees like Khalid Shaikh Mohammed—get the best treatment, while the rest, including detainees who not only are not big-time terrorists but may in fact be innocent, are left to languish in obscurity. The commission procedures include fewer safeguards than ordinary criminal trials or courts-martial, but they are fairer than the Bush administration's original rules, allowing defendants to see all the evidence against them and restricting (but not completely disallowing) the admission of hearsay and of evidence obtained through "cruel or inhuman" means. Judgments can be reviewed by the U.S. Court of Appeals for the D.C. Circuit and ultimately by the Supreme Court.

But these protections apply only to the guys we're pretty sure are guilty. The rest, including poor schmucks sold for ransom by U.S. allies in Afghanistan and falsely identified as Taliban or Al Qaeda hangers-on, probably will never be brought before commissions. All they've got is the Combatant Status Review Tribunals, in which the military perfunctorily confirms that it was right to lock them up. The bill (which the president is expected to sign any day now) purports to strip them of the right to challenge their detention in federal court.

I say "purports" because the Supreme Court ruled that noncitizens detained at Guantanamo do have that right, since the base is effectively U.S. territory. If I'm reading that decision correctly, the Court said it was a statutory right and did not address the issue of whether it was also a constitutional right. But assuming it is, and leaving aside the question of whether we are in the midst of "rebellion or invasion" (we're not), can Congress selectively suspend habeas corpus? It clearly is not prepared to suspend it across the board, for citizens and noncitizens alike, and the Supreme Court says citizens detained as "enemy combatants" must have an opportunity to contest their status before a "neutral decisionmaker."

Speaking of which, the bill apparently confirms (grants?) the executive branch's authority to unilaterally identify "enemy combatants"—defined as people who "purposefully and materially" support hostilities against the U.S.—and detain them indefinitely. This seems to mean that noncitizens in the U.S. or anywhere else under U.S. control can be locked up at the president's whim, with no legal recourse whatsoever. Citizens presumably would have to get their shot with a "neutral decisionmaker." The Bush administration says the Combatant Status Review Tribunals qualify. Will the Supreme Court agree? Unfortunately, that's not a rhetorical question.

Here is the text (PDF here) of the bill passed by the House, which I gather is very similar to what the Senate passed.