Tortured logic

Habeas corpus is one of our founding ideals.

No more.

The issue that most engaged administration critics was the new bill’s aggressive and possibly constitutionally suspect efforts to keep the courts from hearing many detainees’ challenges or claims based on the Geneva Conventions. Though people charged with war crimes would receive trials before military commissions that largely resemble courts-martial and criminal prosecutions, the administration has announced plans to use just a score of those.

About 430 people are being held at Guantánamo Bay, Cuba, and there is no guarantee that they will ever be tried. The legislation, unchanged by the compromise, would prohibit habeas corpus challenges to these indefinite detentions.

“You’re creating a system,” Ms. Daskal said, “where Khalid Shaikh Mohammed,” called the mastermind of the Sept. 11, 2001, attacks, “will have more rights than the low-level detainee who was sold into U.S. custody by bounty hunters.”

Indeed, the propriety of indefinite detentions at Guantánamo will continue to be decided by combatant status review tribunals, or C.S.R.T.’s. The revised rules for military commissions do nothing to alter the tribunals’ unorthodox procedures.

"The C.S.R.T. is the first time in U.S. history in which the lawfulness of a person’s detention is based on evidence secured by torture that’s not shared with the prisoner, that he has the burden to rebut and without the assistance of counsel,” said Joseph Margulies, author of “Guantánamo and the Abuse of Presidential Power” (Simon & Schuster, 2006).

A limited appeal from adverse determinations of these tribunals is permitted, but habeas corpus challenges are not. That means, Professor Freedman said, that “the feature of the bill that does the greatest amount of harm to the American legal system remains untouched.”