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How to Get Out of Being Held Indefinitely Without Charge

So the Obama administration’s Guantanamo task force has decided that about 50 people ought to be held indefinitely without charge. What’s the remedy to for that? Basically, there’s habeas corpus, the procedure by which a detainee requests that a court determine the validity of the government’s claim to hold him (in this case) because of his status as a belligerent in the conflict with al-Qaeda. Notice that’s not the same thing as asking a court to decide whether the government in the first place has the power to detain someone indefinitely without charge. According to lawyers for Guantanamo detainees and prominent civil liberties advocates, any lawyer who asks a court to decide that broader question will immediately be told, “Your client has the right to a habeas hearing. File a habeas petition and then come talk.” So here’s what the procedure is for the 50 or so detainees in this indefinite-detention-without-charge category.

First a detainee has to win a habeas case. (Check their track record here.) Easy, right? If the government decides not to contest the decision, then the detainee — who, recall, the Obama administration is saying is too dangerous to responsibly release — walks. (More on that in a second.) We haven’t been faced with this situation yet. But if the administration appeals, then the detainee has to win. And on up to the Supreme Court, if the government really wants to contest the issue. Joseph Margulies, a professor of law at Northwestern University who’s focused extensively on Guantanamo, estimates that this process could take at least 18 months to exhaust itself at the earliest. Possibly years. (And even then, it wouldn’t be certain that the Supreme Court would use a habeas appeal as an opportunity to decide the first-order question: whether the Obama administration has the constitutional power to hold a member of al-Qaeda or the Taliban in indefinite detention without charge.)

The real inflection point will come “when the government loses” a habeas case, said Margulies. “Are they going to let [a detainee] go?” If the administration concedes the loss, then there’s no crisis. But if it decides it can’t let someone go, and runs out of appeals, then the administration’s most likely option is to get a get a preventive detention bill from Congress, a civil liberties Rubicon. The Obama administration briefly considered that option this summer and balked. But if the administration loses a habeas case; seeks to detain someone indefinitely even so; and doesn’t have explicit preventive detention powers from Congress, then it most likely is just simply breaking the law.

“I heard about this listening to an NPR story this morning,” said Sabin Willett, a lawyer for the Uighurs at Guantanamo Bay, describing his big-picture reaction to the Guantanamo task force’s conclusions. “The intro to that story described them as ‘the terror suspects at Guantanamo.’” Willett pointed out that his clients have been cleared by Defense Department tribunals and exonerated by the courts. They are not terrorists, and no one believes they’re terrorists. “This proves the power of the press — those two words ‘terror suspects.’ How do I fight that?”

From there, Willett continued, it’s natural to start wondering if those “terror suspects” really are too dangerous to release. “I keep saying, give me a name. Who’s too dangerous? Give me a reason. Then start asking what other regimes had people they considered ‘too dangerous to release.’ You’re going to find yourself on a list of countries you’re not too proud to be on.”

A postscript: Dear lawyers. I am not one of you. This is my best attempt to understand what you guys do. I am happy to correct errors here, but please read this post in that spirit.

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