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Judging Guantanamo: The Court, Congress, and the White House

Introduction

The status of the suspected terrorists detained by the United States at the U.S. Navy base in Guantanamo Bay, Cuba, continues to test the balance between the executive, judicial, and legislative branches of the U.S. government, and is expected to become an early test for President-elect Barack Obama. On August 6, 2008, a jury of U.S. military officers convicted Osama bin Laden's former driver of supporting terrorism, but acquitted him of a more serious charge--conspiracy to commit terrorist attacks. The native Yemeni was later transferred to a prison in his home country to finish out his sentence. The verdict, the first delivered at Guantanamo's controversial military commission, followed a string of setbacks for the Bush administration in its attempts to try suspected terrorists. On June 12, 2008, in its third major ruling on the topic, the Supreme Court declared unconstitutional a major provision of the 2006 law that enabled detainees to be tried before military tribunals at Guantanamo. The ruling in Boumediene v. Bush, written by Justice Anthony M. Kennedy, declared that the military tribunals failed to offer the "fundamental procedural protections of habeas corpus."

In plainer language, the tribunals' tight handling of prosecutorial evidence and limits on appeals made it too difficult for detainees to build a case to challenge their detention. "Liberty and security can be reconciled," the majority opinion stated. While the ruling represents the third consecutive setback for the Bush administration, it does not mean Guantanamo will close quickly, or even that the tribunals will halt. Yet with hundreds more petitions for habeas corpus pending, pressure to send some detainees back to their home countries may grow. Based in part on the Supreme Court ruling in Boumediene v. Bush, a federal judge declared in November 2008 that five of the six...

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