Congress’s Guantanamo Burden

The Washington Post, June 13, 2008

The key words in Justice Anthony M. Kennedy’s Guantanamo opinion do not involve the history of habeas corpus, the territorial status of Guantanamo Bay or the accountability of the executive branch to the rule of law. They appear on the opinion’s penultimate page and are unlikely to attract much attention amid the chatter the decision has already generated. “[O]ur opinion does not address the content of the law that governs petitioners’ detention,” Kennedy wrote. “That is a matter yet to be determined.”

Yes, habeas corpus has been grandly re-established at Guantanamo. But, as the court majority made clear in this brief passage, that does not mean the government is holding a single person illegally at the base. Nor did the court have a whole lot to say about what procedures the government needs to use to determine whom to detain. Most important, it didn’t require that anyone at the base walk free.

The result is that 6 1/2 years after the Sept. 11 attacks, America still faces many of the fundamental questions about detentions that it faced the day the military brought its first captives to Cuba.

It’s long past time to answer them. Indeed, Congress and the executive branch — whether the Bush administration or its successor — desperately need to enact a comprehensive legislative solution to the problem of detentions in the war against terrorism, both clearly defining “the content of the law” and creating appropriate procedures for making those judgments.

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