Prosecute or release Guantanamo detainees

Congress said what it meant and meant what it said in denying access to American courts for prisoners held at the U.S. military prison at Guantanamo Bay, Cuba. If this ruling by a federal appeals court in Washington, D.C., stands, the U.S. government could hold several hundred "detainees" for the rest of their lives if it so desires.

That is contrary to fundamental American principles of justice. Congress should repeal the law on which this ruling is based. Either way, the U.S. Supreme Court should grant review in this case and reverse the decision. Some so-called enemy combatants have been held at Guantanamo for more than five years without the benefit of charges or trial. It is not clear which, if any, are guilty of any crime against the United States. They deserve swift justice before an impartial court, or they should be released.

The question of the legality of holding alleged enemies has been bruited about between the federal courts and Congress for nearly five years. Although the Bush administration initially insisted the courts had no jurisdiction over Guantanamo, the U.S. Supreme Court ruled otherwise. The issue at the core is the writ of habeas corpus, which dates to early English law, giving a prisoner the right to challenge his imprisonment in court. The authors of the American Constitution said Congress could not suspend habeas corpus except when in "cases of rebellion or invasion the public safety may require it."

On the eve of last November's elections, the Republican-led Congress, to its everlasting shame, passed legislation that pointedly stripped the federal courts of jurisdiction in all Guantanamo cases, thus suspending habeas corpus for only the fifth time since 1789. In its ruling Tuesday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that Congress could not have been more clear. Writing for the court, Judge A. Raymond Randolph wrote, "It's almost as if [members of Congress] were slamming their fists on the table shouting 'When we say "all," we mean all - without exception!' "

While not disputing that conclusion, Judge Judith W. Rogers, writing in dissent, said Congress exceeded its authority. She is right, and her position likely will be supported by the U.S. Supreme Court. The question is whether habeas corpus covers prisoners held at Guantanamo: The administration says no because the base is technically outside the territory of the United States. The plaintiffs say yes because it is territory under U.S. jurisdiction. The court has suggested it takes the latter view, but the question has not been resolved.

Thus, while it is important that the Supreme Court reinstate the rights of so-called enemy combatants, the administration simply will relocate them to moot the point. That's why Congress should direct the administration to immediately review the status of all those held at Guantanamo, release those who present no threat and prosecute the rest under established rules of military tribunals. Then close this embarrassing symbol of injustice.

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