A man who the government claims fought “on the front line” of terrorism is given a door to freedom: Australian Guantánamo detainee David Hicks has entered a plea deal before one of the military commissions created by the Military Commissions Act, and agreed to serve nine months with immediate transfer to Australia.
Yet on April 2, the Supreme Court consigned almost 400 other detainees who have never been able to be heard in court, and who are charged with no crime, to years more of toilsome litigation by denying them a chance to present their cases.
These vastly disparate outcomes are hard to square–unless you ask how the chips fall politically. For although we cannot peek behind the green curtain of Defense Department policy-making, the government’s decisions reek of politics of the worst sort.
Consider first the Supreme Court’s decision not to hear the detainees’ case. The case is the same one that went to the Court in 2004 as Rasul v. Bush. In Rasul, the Justices ruled that federal courts had jurisdiction to hear the detainees’ cases. Concerned that review would reveal how weak the case against many detainees was, the Administration engineered legislation to cut short the cases in midstream–the Court’s decision this week means it succeeded, and therefore put off the embarrassing day of reckoning when the detainees can come into court.
The Court’s decision impacts the lion’s share of detainees who, unlike Hicks, have never been charged in a military commission. For many, the evidence suggests that the Administration simply has no evidence against them. (Keep in mind that any evidence the government possesses was gathered at Guantánamo. And of course, if you torture enough people often enough, you soon have the evidence to lock up everybody.)
The Court has consigned the detainees to the limited avenue of review provided by the 2005 Detainee Treatment Act. Whether that limited review will be functionally adequate remains to be seen. (I personally have grave concerns that the DC Circuit will be all too eager to act as a rubber stamp for military detention decisions.)
But one thing is beyond doubt: The Guantánamo detainees will have to wait years more before they have their day in court. Indeed, the Court of Appeals took more than two years to issue its recent awful decision denying the detainees all rights.
By contrast, David Hicks will leave Guantánamo soon. He will be in an Australian jail for nine months. And then he is wholly free. Unlike the other detainees, he has been charged with a crime–so one would have thought that he is more dangerous than the others.
The Hicks plea offers no evidence that military commissions are intended to dispense justice. Like the recently revealed attempts by the White House to manipulate the prosecution decisions of US Attorneys, it demonstrates White House willingness to make the administration of justice grist for the political mill. A quick look at the charges against Hicks and the course of the trial proves as much.