Guantanamo Flap about Ghost Detainees May Be Misplaced

The LA Times runs a story entitled Pentagon Reportedly Aimed to Hold Detainees in Secret which reports that before the Supreme Court ruled in the Guantanamo decision the DoD held a meeting in which it mapped out a plan to create a special class of 'ghost' detainees whom it would not acknowledge holding. The purpose of this exercise was, the LA Times tells us, to undermine the Pentagon's already rather ungenerous policy of limited one-sided annual reviews of the status of detainees.

Pentagon officials tentatively agreed during a high-level meeting last month to deny that process to some detainees and to keep their existence secret “for intelligence reasons,” senior defense officials said Thursday.

Under the proposal, some prisoners would in effect be kept off public records and away from the scrutiny of lawyers and judges.

Two senior defense officials said they believed that the prisoners who would be denied the reviews might be held by the CIA, rather than the Defense Department.

A U.S. intelligence official said Thursday that the CIA was not holding any detainees at Guantanamo, but added that the annual reviews would not apply to CIA prisoners elsewhere.

Some bloggers are getting very excited about this but I think for the wrong reasons.

It's clear from news reports that the DoD never expected to lose the Guantanamo case. Having lost it, though, I see nothing in this report of pre-decision meetings to suggest a current policy of undermining the Court's decision. It's true that the Pentagon is now “going ahead with the status hearings:. It's also true that the Supreme Court's decision doesn't say in so many words that someone spirited away from Guantanamo to a place where the Court's writ might not run necessarily keeps his right to sue, but that is the almost inevitable consequence of the Padilla decision, especially if one looks at Justice Kennedy's concurrence, which I think will control on this issue.

So, until I hear otherwise, I am going to trust the military on this one, and indeed the DoD's official line is that “everybody under DOD custody will be subject … to the annual review process that has been outlined previously.”

Of course the key words are “under DOD custody”. The great unanswered question remains what rights — if any — the people held by the CIA will have. (Consider how bad the position is of the ones they admit to having, then imagine what happens to the ones held in secret).

The Guantanamo situation remains very troubling, but the Supreme Court has ensured that what might have been a stop on an American Gulag will — soon, I hope — become instead a regime whose harshness is cabined by legality. There is currently little reason to feel sanguine that the same can be said about the interrogation/detention centers run abroad by the CIA.

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