Not legal, but Gitmo detention camp won’t close down

“To the extent that Guantánamo exists to hold detainees beyond the reach of US courts, this blows a hole in its reason for being,” said Matthew Waxman, a former detainee affairs official at the Defence Department.

And without that, much will change.

The decision granted detainees the right to challenge their detention in civilian courts, meaning that federal judges will now have the power to check the government’s claims that the 270 men still held there are dangerous terrorists. That will force officials to answer questions about evidence that they have long deflected despite international criticism and expressions of support, from President Bush on down, for closing the camp.

Some cases, though no one can be sure how many, are likely to result in court orders freeing detainees. The government said on Thursday that its prosecutions before military commissions at Guantánamo would continue, but habeas corpus suits resulting from the justices’ decision are certain to complicate the 19 war crimes cases underway, giving detainees’ lawyers a vehicle to try to stop those proceedings.

Just as important, some lawyers said, defending scores of cases will be a huge burden for the government, most likely increasing pressure inside the Bush administration to send detainees back to their home countries.

Nearly 100 of the 270 detainees are Yemenis. American officials have said they have not repatriated many of them because of fears that they would be released quickly. The decision on Thursday, several lawyers said, could encourage American officials to take their chances, shrinking the population by a third or more.

Detainees’ lawyers have long claimed that the government will not be able to justify the detention of many of the men.

Pentagon officials, on the other hand, have maintained that classified evidence establishes that many of them are dangerous. The federal courts will now have the power to sort through those claims.

But the justices’ decision did not change some realities that have long made it easier to say that the Guantánamo detention center should be closed than to figure out how. Just last month Defence Secretary Robert M Gates, who advocates closing the camp, told Congress that “we’re stuck” in Guantánamo.

One military official said on Thursday that those complications remained as confounding after the ruling as they were before. The official, who was not authorised to discuss the court ruling and spoke on condition of anonymity, noted that practical difficulties had stalled plans for an alternative to Guantánamo. Among those is the question of where to put detainees whom the administration views as too dangerous to release.

Under the decision, it appears that the detainees will have the same rights to challenge their status whether they are at Guantánamo or at a military base or prison inside the United States. “If the detainees have constitutional habeas rights at Guantánamo,” the official said, “what incentive is there to go through the logistical, fiscal and legislative pain of bringing them to the US?”

The 5-to-4 defeat for the administration’s detention policies was unqualified: a majority of the justices said the Constitution applied at Guantánamo.

“Liberty and security can be reconciled,” the majority opinion said.

But lawyers said many questions remained unanswered, including the breadth of the detainees’ protections.

The question of whether detainees have habeas rights has long been a central issue in the battle over Guantánamo. Scores of such cases had been in the courts before Congress sought to strip federal judges of the power to hear them. Habeas suits by virtually all the 270 detainees are now expected to commence or be revived, lawyers said.

Such cases give federal judges broad powers to review the government’s reasons for holding a prisoner. But once a judge is satisfied that there is a legitimate basis, a case can end quickly with a ruling in the government’s favour.

“Habeas is not a ‘get out of jail free’ card,” said Jonathan Hafetz, a detainees’ lawyer at the Brennan Center for Justice at New York University. “It just provides a fair, legitimate and independent sorting process to determine who should and who should not be held.”

Bush on Thursday appeared to hold open the possibility of a new legislative effort to alter the decision’s result. But for the moment, the administration seemed tangled in a dilemma of its own making, left with a detention camp housing some admitted architects of terror, including the 2001 attacks on the United States, but with the idea evidently dead that the camp was beyond the reach of the courts.