The Courts’ Shifting Rules on Guantánamo Detainees

Co-authored with Robert M. Chesney, The Washington Post, February 5, 2010

One judge rules that a detainee’s statements to his military review tribunal are tainted by past coercion — and orders him released. Within days, another judge rules that a detainee’s statements to the same sort of tribunal are not tainted, despite similar abuse — and affirms his detention.

One judge rules that to justify a detention, the government must prove that a detainee poses a future threat — and orders freed a Guantánamo Bay detainee who acknowledges a past relationship with al-Qaeda but has cooperated with authorities since his capture. Another judge rules that a detainee need not pose a future danger and permits the continued detention of a man whose future threat he describes as a “ludicrous” prospect.

President Obama’s decision not to seek additional legislative authority for Guantánamo detentions, along with Congress’s lack of interest in taking on the subject, means that, for good or for ill, judges must write the rules governing military detentions of terrorist suspects. But the judges hearing habeas cases from the nearly 200 detainees remaining at Guantánamo do not agree on what the rules should be. Indeed, on the most basic architectural features of any detention system, they disagree profoundly.

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