The waiting game

September 27, 2004

ONCE AGAIN, a federal judge has reminded the executive branch that due process is due all, including the prisoners held incommunicado for nearly three years in the U.S. brig at Guantanamo Bay. This time, there are signs that the idea will take.

The administration last week agreed to release U.S. citizen Yaser Esam Hamdi, also held incommunicado but at the Consolidated Naval Brig in South Carolina, months after Supreme Court justices ruled that Mr. Hamdi could challenge his internment. He has never been charged with a crime, and Saudi Arabia, where he will be returning and where his family lives, says it doesn't plan to charge him with any.

At Guantanamo, 35 Pakistani prisoners were released this month, but some 550 still sit after more than two years in custody, awaiting charges and hearings. U.S. District Judge Joyce Hens Green has given the Defense Department until Oct. 18 to provide the charge or factual basis for jailing each of the 60 men held at the prison who have sued the government for wrongful detention. The department has until Oct. 4 to file written arguments on why these men should not be released. Too soon? Too bad.

One would think their captors would know by now what charges they were lodging against the men, the majority of whom were taken from battle sites in Afghanistan. One would think that the Supreme Court decision in late July supporting their due process rights in U.S. courts would have goosed the administration to try harder than to set up a less-than-impartial martial court commission and pseudo-judicial detention review panels on base.

What's more, the presiding officer of the court commission, Army Col. Peter Brownback III, has asked that two panelists be dismissed because their pasts make them biased against the defendants. And both defense lawyers and the chief prosecutor have challenged Colonel Brownback's position, suggesting that close ties to the commission's appointing authority, which is to review the panel's decisions, constitute a conflict.

As the top court affirmed nearly three months ago, these detainees deserve due process, not puppet courts, and with all due speed. The newly fixed deadlines should end the stalling over procedures such as how much access to their clients defense attorneys will have. That would start closing this less-than-stellar chapter in the history of U.S. jurisprudence, something that can't happen soon enough.

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