Doing Battle With Due Process

by Sabin Willett

When the Supreme Court issued its recent Guantanamo ruling, hysteria overcame some administration supporters. "One of the worst decisions in the history of the country," declared Senator John McCain. Americans will "almost certainly" die as prisoners "return to the kill," wrote a furious Justice Antonin Scalia. A Wall Street Journal editor darkly warned that the Constitution is "not a suicide pact."

The extravagance of this rhetoric was puzzling. The ruling (Boumediene v. Bush) set no Guantanamo prisoners free. It held only that federal judges must consider the facts and decide, after six years, whether the prisoners really are enemy combatants or not. Most of these federal judges were appointed by Republican presidents. Federal judges convicted Zaccharias Moussaoui, the Shoe Bomber, and the Millennium Bomber. With administration efforts to rig secret military commissions all mired in failure, federal judges are responsible for 100 percent of the terrorist convictions since 9/11.

So why, after six years, is it "one of the worst decisions in the history of the country" that federal judges should consider the facts at Guantanamo? Why is that so frightening a prospect for the president and McCain?

Frightened they surely are, for they have redeployed the "weapons-of-mass-destruction" marketing team. This time we are told that 30 former Guantanamo prisoners have "returned to the fight." (If that is true, why did President Bush release them? No judge released them. But let that pass.)

It is a serious allegation, so the lawyers looked into it. It turns out that clients of our firm, who were sent to Albania in 2006, were two of the 30. What fight had they returned to? Abu Bakker Qassim had published an op-ed in The New York Times. Adel Abdul Hakim had given an interview. These press statements were deemed hostile by the Department of Defense.

Surely the Pentagon was joking? They weren't.

So I can't speak for the other 28, if indeed there are another 28, but for the two men I do know about, giving hostile interviews constituted "returning to the fight."

And now the Supreme Court ruling raises a grim specter -- what if there are more released men, giving even more hostile interviews? That this threat should have been unleashed by Justice Anthony M. Kennedy must seem a particular betrayal -- for Kennedy was appointed by President Reagan, whom McCain has lionized for judicial appointments.

But never mind about that either. The senator prefers -- and has been reading out for applause lines -- Chief Justice John G. Roberts's Boumediene dissent. The chief's main argument is that an existing statute, the Detainee Treatment Act, is good enough for Guantanamo prisoners. This raises another puzzle. Under that law, cases are heard by . . . federal judges. Just as Justice Kennedy ordered last week. So having federal judges involved was fine before, and now it will result in our troops being killed. What's the difference?

It may have something to do with facts. Justice Kennedy directed federal judges to consider them. The Detainee Treatment Act prohibits fact-finding and poses a different question: When the Department of Defense said the men were enemy combatants, was it following its own rules? Yes or no?

We have learned some of the executive branch's rules over the last seven years. Among them: The executive may torture, spy on citizens without a warrant, and ignore acts of Congress as necessary. Down in Guantanamo, the administration may rubber stamp a man as an "enemy combatant" based on secret "intelligence" the prisoner never sees.

Those rules will no longer govern. Instead, federal judges will be governed by facts. On the facts, some Guantanamo prisoners may prove to be enemy combatants. Many certainly will not. But for the first time in seven years, Americans will have a process they can trust. They may just learn the truth. And for some, that is a very frightening prospect.

Sabin Willett is a partner at Bingham McCutchen, which represents nine prisoners still held at Guantanamo Bay.
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