Gitmo vs. rule of law.

Byline: The Register-Guard

Since the U.S. Supreme Court declared last June that federal courts have jurisdiction over challenges by detainees at Guantanamo Bay, the Bush administration has done its best to defy the landmark ruling.

Earlier this week, U.S. District Senior Judge Joyce Hens Green rejected the administration's insistence that it can create a class of people called "enemy combatants" who are outside the protection of the very rule of law that the United States was founded to uphold.

Green rightly rejected the administration's request to toss out lawsuits by 54 detainees protesting their imprisonment at Guantanamo. She ruled unconstitutional the tribunals that were established by the military in a half-hearted effort to satisfy the high court's ruling that the prisoners must receive individual legal reviews.

Green said those tribunals violated due process rights guaranteed under the Fifth Amendment and, in some cases, the Geneva Convention treaties that govern the treatment of prisoners of war. She also questioned the reliability of information used in those tribunals that may have been obtained through torture and, more broadly, the wobbly framework of legal arguments and processes used by the administration to justify the indefinite detention of prisoners.

`It would be far easier for the government to prosecute the war on terrorism if it could imprison all suspected `enemy combatants' at Guantanamo Bay without having to acknowledge and respect any constitutional rights of detainees," Green wrote. That, she added, would violate "the most basic fundamental rights for which the people of this country have fought and died for well over 200 years."

Green's ruling squares nicely with the Supreme Court's ruling last summer that the Guantanamo detainees are entitled to challenge their detentions. The administration's obstructionist response has been to allow the prisoners to challenge their confinements in the military's kanga- roo-court tribunals, while insisting that their appeals are beyond the reach of U.S. courts. It's the legal equivalent of the old shell game: Now you see the detainee, now you don't.

Unfortunately, one of Green's colleagues, U.S. District Judge Richard Leon, two weeks earlier rejected lawsuits by a different group of detainees, saying that the courts should not "intervene in the military's handling of the Guantanamo detainees." That means the conflicting rulings will have to be resolved by an appellate court and, perhaps, the U.S. Supreme Court, which already has made it clear that the detainees have a fundamental right to legal due process.

The administration should save everyone time and effort by acknowledging that the rule of law applies to detainees at Guantanamo - and then working with Congress to create legal procedures for them that balance civil liberties and security. Lawmakers could also ensure that policies and safeguards are in place to protect detainees from the inhumane psychological and physical abuses that have been amply documented in recent months.

So far, the administration, with its boundless appetite for unilateralism, has refused to consider such a major policy shift. Congress, meanwhile, has conveniently chosen to abdicate its legislative responsibilities in the fight against terror to the executive branch and judiciary.

Green's ruling, and the strong likelihood that it will be upheld by the Supreme Court, should convince the administration and Congress that the time has come to change course - and to bring light and justice to the legal black hole that is Guantanamo.