The Supreme Court decided on Monday that it would not hear appeals on habeas corpus cases from seven out of the 169 men currently held in Cuba. This decision effectively negates the Boumediene v. Bush decison of 2008, which stated that prisoners of the camp did have the right to challenge their confinement in civilian courts with a writ of habeas corpus. Habeas corpus refers to the right of a prisoner to have his case heard by a federal court to determine the legality of their detention.
Ultimately, the decision means that the detainees will not be granted judicial review of whether or not there is sufficient evidence to legally continue holding them. However, review in a civilian court means review by civilian rules. This would hold the government to the same standard that it is held to in civilian cases, applying the “innocent until proven guilty” qualification that is necessary to get a conviction for domestic criminals. The standard of evidence that is necessary to hold suspected criminals in America would be applied to the suspected terrorists at Guantanamo Bay, which poses significant problems.
Obtaining evidence in terrorism cases, which often take place across multiple nations whose governments are not always interested in working with the United States, is not at all the same thing as it is here. If someone in the U.S. commits a crime, local law enforcement and crime scene investigators are just a phone call away, with a plethora of resources at their disposal to assess the crime scene and gather evidence. Overseas, on the other hand, these same resources are not available, and witnesses (who are willing to talk, at least) are harder to find.
If the military receives intelligence that an attack is imminent or that a high-value suspect is within reach, their goal is to neutralize the threat immediately and prevent the attack, as it should be. The same procedures that are followed at home regarding arrests and evidence collection could not possibly be carried out overseas, where many of the operations are covert and timing is key. Since evidence cannot be collected in the same meticulous manner that it is in criminal cases here in the U.S., it would be unreasonable to hold these cases to the same standards.
Ultimately, any government’s primary responsibility is to its own people, and their safety is its most important objective. If its citizens are at risk, it is a government’s responsibility to do everything in its power to protect them. While this is by no means a free pass for it to refrain from adhering to due diligence in fully investigating suspected terrorists, I believe that it does grant some leeway that is not proper in domestic American courts.