You wouldn’t know it from Wednesday morning’s media coverage, but the Senate’s passage Tuesday evening of a measure to allow Guantanamo Bay, Cuba, detainees into the United States for trial marks a watershed in the history of terror law since September 11, 2001. It is one of the most productive developments in the sorry history of the prisoners since then-President George W. Bush authorized military commissions in November, 2001.
The legislative permission-slip frees the Obama administration to continue to empty the notorious prison at Gitmo without meaningful political retribution from congressional Republicans. It may not be more than a matter of weeks now before we see the indictment in federal court of Khalid Sheikh Mohammed, the grand planner of 9/11, in what surely lines up to be the trial of the century. Ramzi Binalshibh is likely to follow soon after. The seven-year-long bottleneck in Cuba has finally been eased.
It may not be more than a matter of weeks now before we see the indictment in federal court of Khalid Sheikh Mohammed, the grand planner of 9/11, in what surely lines up to be the trial of the century. The seven-year-long bottleneck in Cuba has finally been eased.
In passing the measure, Congress conceded a defeat ordained over and over again, each time the Supreme Court heard a case about the rights due to these men under America’s custody and control. The justices repeatedly told the executive and legislative branches (albeit ambiguously) that they would have to do more, and do better, in the formation of fair military-commission rules. Today, those rules in practical terms are scrapped, or at least downgraded, in favor of good old-fashioned Article III trials like the ones we see on television all the time.
We could have been here in 2005 or 2007. Mohammed and Binalshibh could already have been tried and convicted and sentenced either to life in Florence, Colorado, or to death in Terre Haute, Indiana. Gitmo already could have been shuttered and left to the gekkos. The Uighurs would be with whoever will have them. Tens of thousands of hours of billable time—tens of millions of dollars in court-appointed defense fees—could have been avoided had the government done things right the first time around.
But each year brought a new half-measure of due process, from the Bush administration, from the Pentagon, from the Congress, and each half-measure was rightly and quickly rejected by a majority on the Supreme Court, where they take things like the right to habeas corpus seriously. It is no coincidence that Congress acted Tuesday just hours after the Supreme Court announced it would hear yet another case involving the detainees—this time one challenging the government’s ability to preclude the release of ethnic Chinese prisoners.
Among other things, it was a bipartisan failure in Congress that helped cause and continue the avoidable (and inexcusable) delay in processing terror suspects through our legal system. Sens. John McCain (R-AZ) and Lindsey Graham (R-SC) were just as culpable as some of the Democratic senators who didn’t see the value and the wisdom of allowing our tried-and-true federal courts to handle the detainees fairly (and, in retrospect, relatively quickly). They hemmed and hawed and deferred to the commander in chief in a time of war, misunderstanding all the way that these prisoners were criminal defendants as much as warriors.
But all that is past now. Now there is a clear path forward. Justice finally will come to men like Mohammed and Binalshibh. It won’t be pretty—few of our criminal trials are pretty—but with the federal courts involved we can be assured that the detainees—including the worst of the worst—will get a measure of fairness that will remind the world that America in the end demands better of itself than it does from its enemies. That’s a good thing, a genuinely good thing, even if it comes five years too late.
Andrew Cohen is chief legal analyst and legal editor for CBS News.