Some Guantanamo detainees should be tried in the United States

July 29, 2011 

Even now, nearly 10 years since the events of September 11, 2001, it is difficult to consider the legal status of those at Guantanamo dispassionately.

This is because, for many, these detainees will always represent those who hurt us and would do so again. However, if we are to remain true to our own national values, we must have the courage to set aside our emotions and allow our legal and judicial processes to determine the final legal status of these detainees and to release or condemn them as the evidence warrants.

To date we have denied Guantanamo detainees reasonable right to fair trial and judicial review. Many argue this isn’t required since Guantanamo detainees do not have legal rights under U.S. law because they were captured outside of the U.S. and not held on U.S .territory.

Many point to examples such as the District of Columbia Court of Appeals finding that the Military Commissions Act of 2006 did indeed prevent federal and other courts from considering writs of habeas corpus submitted by Guantanamo detainees determined to be “enemy combatants” for support in this argument.

Further, many argue that Guantanamo detainees do not require trial under U.S. court because the courts have said that Combatant Status Review Tribunal (CSRT) is sufficient to determine their status. Supporters of this argument say that because the tribunals provide for determination of legal status, access to an advocate, presentation of evidence supporting innocence, and that the D.C. Court of Appeals provides for legal review in case of dispute detainees legal needs are met.

Still others argue that, to allow the Guantanamo detainees to be tried in U.S. courts would unnecessarily compromise national security and the safety of U.S. citizens. This, they say, is because in civil court classified documents used as evidence against the detainee must be released to the detainee and others which would compromise on-going operations. Public safety is also said to be put at risk because detainees, brought to civil courts but found not guilty would be released within the U.S. leaving open the possibility of further attacks.

However convincing such arguments may be there is also much to suggest that trial for Guantanamo detainees under U.S. law is proper, advisable, and more consistent with our values.

Let us look first to the authority and efficacy of CSRTs in meeting the legal needs of detainees. Here the U.S. Supreme Court (Boumediene v. Bush) found that CSRTs did not provide the detainee with proper access to evidence used against them, access to proper legal counsel, nor with a timely or guaranteed means of introducing evidence in support of their innocence.

With regard to legal rights the U.S. Supreme Court found that detainees held at Guantanamo did retain at least one key right, that of the writ of habeas corpus. Because U.S. law applied everywhere in Guantanamo, the court found that the writ applied to detainees even though Guantanamo is not sovereign U.S. territory. The writ of habeas corpus provides detainees with the right to question the legality of their arrest and detention.

Finally, there exists already remedy under U.S. law to minimize or prevent breaches to U.S. security due to release of sensitive documents. This remedy, Classified Information Protection Act, prevents the release of such documents if there is danger to national security. The government has already used the remedy, for example, in the case of the case of the 1998 embassy bombing.

Ensuring that detainees are tried swiftly and fairly then is not only just but is in keeping our national character.

Kevin Deleon, a employee of the state of Washington and of the Washington Army National Guard, is a member of The Olympian’s Diversity Panel. He can be reached

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