And why that decision is so important

The reason it is so important that we give the Guantanamo prisoners a reasonable opportunity to challenge their detention is that so many of them truly don't belong there.  While there are definitely some really bad dudes there, on the whole, this is definitely not, “the worst of the worst” as Bush and co. are so fond of saying.  McClatchy newspapers shows us what real journalism actually looks like with their great investigative report on who is actually at Guantanamo:

An eight-month McClatchy investigation in 11 countries on three
continents has found that Akhtiar was one of dozens of men ? and,
according to several officials, perhaps hundreds ? whom the U.S. has
wrongfully imprisoned in Afghanistan, Cuba and elsewhere on the basis
of flimsy or fabricated evidence, old personal scores or bounty
payments.

McClatchy interviewed 66 released detainees, more than
a dozen local officials ? primarily in Afghanistan ? and U.S. officials
with intimate knowledge of the detention program. The investigation
also reviewed thousands of pages of U.S. military tribunal documents
and other records.

This unprecedented compilation shows that most
of the 66 were low-level Taliban grunts, innocent Afghan villagers or
ordinary criminals. At least seven had been working for the U.S.-backed
Afghan government and had no ties to militants, according to Afghan
local officials. In effect, many of the detainees posed no danger to
the United States or its allies.

The investigation also found
that despite the uncertainty about whom they were holding, U.S.
soldiers beat and abused many prisoners…

Some details:

Army Spc. Eric Barclais, who was a military intelligence
interrogator at Bagram Air Base in Afghanistan from September 2002
through January 2003, told military investigators in sworn testimony
that “We recommended lots of folks be released from (Bagram), but they
were not. I believe some people ended up at (Guantanamo) that had no
business being sent there.”

“You have to understand some folks
were detained because they got turned in by neighbors or family members
who were feuding with them,” Barclais said. “Yes, they had weapons.
Everyone had weapons. Some were Soviet-era and could not even be fired.”

A former Pentagon official told McClatchy that he was shocked at times by the backgrounds of men held at Guantanamo.

” 'Captured with weapon near the Pakistan border?' ” the official said. “Are you kidding me?”

“The screening, the understanding of who we had was horrible,” he said. “That's why we had so many useless people at Gitmo.”…

The majority of the detainees taken to Guantanamo came into U.S.
custody indirectly, from Afghan troops, warlords, mercenaries and
Pakistani police who often were paid cash by the number and alleged
importance of the men they handed over. Foot soldiers brought in
hundreds of dollars, but commanders were worth thousands. Because of
the bounties ? advertised in fliers that U.S. planes dropped all over
Afghanistan in late 2001 ? there was financial incentive for locals to
lie about the detainees' backgrounds. Only 33 percent of the former
detainees ? 22 out of 66 ? whom McClatchy interviewed were detained
initially by U.S. forces. Of those 22, 17 were Afghans who'd been
captured around mid-2002 or later as part of the peacekeeping mission
in Afghanistan, a fight that had more to do with counter-insurgency
than terrorism.

It would be upsetting that we had no interest in fair and impartial justice if we were actually dealing with terrorists.  To know that we were so mistreating so many innocent people is really an everlasting stain on our country, especially, President Bush.

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The latest Guantanamo decision

I've been a little delinquent in commenting on last Thursday's Supreme Court decision declaring that the procedures in place in Guantanamo for dealing with “enemy combatants” violate the U.S. Constitution (again).  Best commentary on this (as often seems to be the case with Supreme Court matters) comes from Slate's Dahlia Lithwick:

The Supreme Court, by a 5-4 margin, determined that neither the
president, nor the president plus Congress, could strip detainees at
Guantanamo of the ancient right to habeas corpus via the 2006 Military Commissions Act
(PDF). This is pretty legal and technical, and the concrete
ramifications are still baffling to just about everyone. Judging by the
tone of Justice Antonin Scalia's dissent, however, you'd think that
Justice Anthony Kennedy and his colleagues in the majority not only
released Hamdan and his buddies from their imprisonment at Guantanamo,
but also armed them with a rocket launcher and paid their collective
train fare to Philadelphia. “The game of bait-and-switch that today's
opinion plays upon the Nation's Commander in Chief will make the war
harder on us. It will almost certainly cause more Americans to be
killed,” Scalia wrote. He concluded his dissent with this warning: “The
Nation will live to regret what the Court has done today.”

Here, I will simply interject that Antonin Scalia is an absolute moral and intellectual embarrassment to this nation.  The idea that simply giving someone the right to reasonably challange their detention, not releasing them, just putting that on the table, means the Americans will die is facially absurd.  The whole point is not to let terrorist go free, but to release the many people in Guantanamo who are not terrorists by giving them a chance to prove that after six years.  Furthermore, even if you want to grant that we will potentially releasing terrorists, keeping the American people safe at all costs is not the point of our Constitution.  If that is honestly your first principle, you will be happiest in a police state.  Would we be safer if police could randomly search people on the street and enter homes whenever they wanted?  You bet, but fortunately, we don't live in a totalitarian society.  Back to Lithwick:

And in the end, this is the fight between the majority and the dissent:
Kennedy and the justices who signed his opinion (David Souter, John
Paul Stevens, Stephen Breyer, and Ruth Bader Ginsburg) are worried
about the very real risk of a lifetime of mistaken imprisonment. And
the dissenters (Scalia, Roberts, Clarence Thomas, and Samuel Alito) are
worried about the risk of … what? Not an actual mistaken release, but
a day in court. The big threat here is of federal court review that
may?somewhere far down the line, and at the moment entirely
hypothetically?result in the release of a detainee or (more attenuated
still) the disclosure of a piece of hypothetical information that could
help the terrorists in their fight against us…

Justice Scalia, meanwhile, is banking on someday cashing in the “I told
you so” chit he wrote for himself today. In the event that one of the
prisoners who has suffered years of abuse and mistreatment at
Guantanamo is someday actually released following a federal habeas
proceeding and blows something up, Scalia wants to be able to point at
Justice Kennedy as the man who let him go. Or if in the course of a
someday trial, a piece of evidence is leaked that somehow strengthens a
terrorist group, he can blame Kennedy for his blind faith in the
federal courts. The dissenters here are unwilling to bear the risk that
any of the 270 men at Guantanamo?among them people who were grabbed as
teens and others who claim actual innocence?go free. And, indeed,
reasonable people can disagree about whether that risk is too much to
bear. But Scalia and his dissenting friends today made clear that this
is not the risk to which they most object. What they cannot accept is
the risk that their brothers and sisters on the federal bench?with
decades of judicial experience and the Constitution to light their
way?might now do what they are trained to do: hear cases.

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