What's to become of Guantanamo Bay and the prisoners there?

With an election pending and the Bush Administration in its final days, it's not clear what will happen with Guantanamo.

Bush is keeping it on the DL to avoid harming McCain further, and they certainly don't want to call attention to Gitmo and how the Executive is on the defensive in the federal courts.

Now, a few words on Guantanamo:

The issues surrounding Guantanamo Bay are not red state/blue state issues. They are not campaign issues. They are issues that go to the heart of what we believe in as Americans: Freedom as it is enshrined in our Constitution.

Our Constitution is comprised of two things: a bundle of rights afforded to citizens, and a limitation on the power of the government. Habeas Corpus is not a right of citizens. It is a legal principle - contained in the Magna Carta - that limits a government's right to detain people, regardless of their citizenship. Period.

Over the last eight years our country has woefully forgotten that the Executive is merely one branch in a three-branch system. He is no more powerful than Congress or the Judiciary. He is a figurehead for the Executive branch. That's all.

Salim Hamdan's experiences in detention at Guantanamo Bay represent the best and worst of our system. He was held at Gitmo for four years before the Supreme Court issued it's pivotal decision, Hamdan v. Rumsfeld, that held that the Geneva Conventions did indeed apply to Guantanamo Bay. This decision did not free Hamdan from detention.

I want to note here that McCain denounced the torture used on detainees, once it was revealed that it was being used at Guantanamo and other prisons (most infamously, Abu Ghraib). He led the charge in passing the Detainee Treatment Act in late 2005 that prohibited the torture of all detainees held in the US and abroad. This is commendable.

But here's the bad news. The following year, as he began looking toward a Presidential run and wanted to align himself with Bush, he sat idly by as the Military Commissions Act was passed. The DTA was gutted before his eyes and HE DID NOTHING.

Hamdan was the first (and apparently only) detainee to go through a formal Military Commission. He was found guilty, sentenced to 5 and a half years (with 5 already being served). The Executive, unhappy with this result, unsuccessfully sought to have the military commission's ruling vacated.

Commentators now claim that when Hamdan's sentence is done (December 31 of this year) the Executive can still detain him indefinitely as an "unlawful enemy combatant." If they attempt such a maneuver, it will surely be challenged. Otherwise it would mean that after the government used its best evidence against Hamdan and only secured a sentence of 5.5 years (down from the 30 they asked for), they would then use the same evidence to justify imprisoning him indefinitely under the separate legal status of "unlawful enemy combatant." This is absurd, but there is no way W will release this guy. We'll see what happens.

Author, Jonathan Mahler, spent some time with the lawyers involved in the Hamdan's defense and I wanted to post some snippets:

Four-and-a-half years ago I went down to Washington to profile Hamdan's newly assigned defense lawyer, a JAG lawyer named Lieutenant Commander Charles Swift. A gift from the magazine gods, Swift was a blue-eyed, barrel-chested Navy officer who spoke not in sentences but in stories. Between mouthfuls of fried prawns at a Chinese restaurant at a strip mall in northern Virginia, he told me that he was dead serious about providing a vigorous defense for Hamdan.

I was, I'm embarrassed to say in hindsight, a little surprised. Like the government, which had expected Swift to persuade his client to plead guilty to whatever charges were ultimately brought against him, it had never occurred to me that a member of our own military -- whose headquarters had, after all, been one of the targets of the 9/11 attacks -- would be inclined to put up much of a fight on behalf of an accused terrorist.

But I was wrong. Swift was so serious, in fact, about defending Hamdan that he recruited a young constitutional law professor, Neal Katyal, to help file a lawsuit on Hamdan's behalf, arguing that the military tribunal in which he was to be tried was illegal. And I started working on a book about their case.

Since then, that these two men -- one a Naval Academy screw-up and the other a child of Indian immigrants -- held the rights of an accused terrorist as dearly as they held their own has often made me question my own complacent notion of patriotism. Swift lost both his career and his marriage thanks to the case. Katyal risked a rising legal career, in addition to going tens of thousands of dollars into personal debt. What other country would inspire such sacrifice, and would allow such a public challenge to its president?

After years of being knocked around by the courts, these two lawyers, eventually joined by a passel of law students and Perkins Coie, a Seattle firm that would devote thousands of pro-bono hours to the case, miraculously convinced the Supreme Court to hear Hamdan v. Rumsfeld, their suit claiming that the military commissions were illegal and unconstitutional.

On June 29, 2006, the justices handed down their verdict. Katyal and Swift had won, and the justices' sweeping decision in Hamdan was instantly recognized as one of the Court's most important rulings on presidential power ever. Among other things, it compelled Congress to write fixed rules for all the tribunals guaranteeing defendants more due process rights (for instance, they could no longer be kicked out of the courtroom during their own trial).