The Bush administration thought it had found a way to beat the system -- the system, in this case, being the justice system of the United States. By shipping detainees in the war on terrorism to Guantanamo Bay, the administration thought it had placed those detainees and, by extension, itself in a legal never-never land beyond the reach of U.S. courts.
It hasn't worked out that way. In June, the Supreme Court, on a 6-3 vote, rejected the administration's claim that detainees had no rights to challenge their treatment in U.S. courts. And in January, U.S. District Court Joyce Hens Green held that foreign nationals detained at Guantanamo have a constitutional right to due process that is being denied them by the military tribunal system the Pentagon has established. That decision is now before the U.S. Court of Appeals, where the administration will argue that granting due process rights to detainees will interfere with military decision-making.
As the administration comes to terms with the fact that it hasn't gamed the system quite as well as it thought it had, Pentagon planners are working hard to come up with another way to keep detainees -- and the stories they might tell about the conditions of their confinement -- out of U.S. courts. According to today's New York Times, the Pentagon is asking the State Department to help it ship hundreds of Guantanamo detainees to Saudi Arabia, Yemen and Afghanistan.
It's like rendition, only on a massive scale. "Our top choice would be to win the war on terrorism and declare an end to it and repatriate everybody," a senior Defense Department official told the Times. "The next best solution would be to work with the home governments of the detainees in order to get them to take the necessary steps to mitigate the threat these individuals pose."
The bigger concern is -- or ought to be -- the treatment to which these detainees would be exposed if they are shipped out of Guantanamo. While the Pentagon says it would take steps to ensure that detainees are treated humanely, the State Department acknowledges that torture is common in prisons in Saudi Arabia and in some of the other countries where the United States has sent detainees through earlier renditions. A senior Defense Department official told the Times that the difficulty in getting "effective and credible assurances" that detainees would be treated humanely after being transferred has been "a cause of some delay in releasing or transferring some detainees we have at Guantanamo."