Capping a series of recent developments in the detention of suspected terrorists in Guantanamo Bay, officials of the U.S. government have been telling reporters that more than a hundred detainees may be released in the next few weeks. According to a report in Time, one military official said that as many as 140 detainees – said to be “the easiest 20%” of those being held – are scheduled for release. The military is waiting for a “politically propitious time to release them,” the unnamed official told Time.

The disclosure follows last week’s announcement that the United States and Australia have reached agreement on procedures to govern the trial of one of the Australian detainees before a military tribunal. The deal, announced on November 25, suggests that the first case before the military commissions set up by President Bush to deal with the terrorist campaign against the United States could soon get under way.

Two Australians are believed to be held at Guantanamo Bay, and one of them, David Hicks, was among the initial group of six captives that the Pentagon has deemed eligible for trial before a commission. The Australian government, like other U.S. allies whose citizens are among those detained, has been pressing Washington over the continued detention of their citizens and the perceived flaws in the military commission rules that were set out last year.

In the recent agreement, the U.S. government provided what it called “significant assurances, clarifications and modifications” about the military commission process. These included a guarantee that, based on a review of the evidence against the Australian detainees, the prosecution would not seek the death penalty in any of their cases. The other assurances apply specifically to the prospective Hicks trial: the U.S. will not monitor conversations between Hicks and his lawyer, nor rely on classified evidence which could not be shown to the defendant, nor close the trial to the press or representatives of the Australian government. The Department of Defense also indicated that Hicks could be represented by an Australian lawyer, subject to security clearance, and suggested that he might be allowed to serve any sentence in Australia if convicted.

In return for these assurances, the Australian government agreed that the commission would provide a “full and fair trial” for the accused.

The Pentagon was careful to state that the assurances given to Australia were “case-specific,” meaning that they would not automatically apply in other commission trials. The implication seems to be that there are no plans to charge the Australians with serious terrorist offences; such charges might require the use of intelligence-based evidence that the military would not want to reveal in open court, and the U.S. would probably want to seek the death penalty for them.

Nevertheless the Department of Defense also said that it was “in the process of drafting clarifications and additional military commission rules” that would incorporate these new standards “where appropriate,” suggesting that some more formal modifications to the commission procedures may be announced.

A process of negotiation has also been underway between the United States and Britain over the nine British detainees, of whom two have been designated eligible for trial. The subject was apparently discussed between President Bush and British Prime Minister Tony Blair during the President’s visit to Britain, and British newspapers are reporting the outlines of a possible deal, under which some of the detainees would plead guilty in exchange for a modest prison sentence that would be served in Britain, and others would be detained in the U.K. under anti-terrorism legislation. According to the reports, two British detainees, Shafiq Rasul and Asif Iqbal, could be released without charge.

Last week one of Britain’s most senior judges launched a scathing attack on the Guantanamo legal regime. In a public lecture, Lord Steyn described the treatment of the detainees as “a monstrous failure of justice,” and suggested that the British government should make plain “our condemnation of the utter lawlessness” of the Guantanamo detentions. He also said that any trial under the military commission rules as they currently stand would take place before a “kangaroo court” that would represent “a stain on United States justice.”

Last month the United States Supreme Court agreed to hear an appeal on behalf of a number of Guantanamo detainees, claiming that they should have the right to have their detention reviewed by a civilian court in the United States. Lower courts in the United States have previously refused such petitions on the grounds that the detainees are not being held on U.S. territory, since Guantanamo Bay is held on an indefinite lease from Cuba. The case will give the Supreme Court its first opportunity to examine the legal regime under which the detainees are held – but it seems likely that the Court’s decision will be confined to the narrow question of whether the captives have the right to petition for a writ of habeas corpus (the Constitutional right to have an independent court rule on any arrest or detention by the government). The substantive questions raised by the detention may be left to be decided by the courts that receive the detainees’ habeas petitions in due course (assuming the right to file them is granted) – so it could be some time before any definitive legal ruling on the Guantanamo system is delivered.

From the Book:

Due Process
Prisoners of War, Non-Repatriation of
Terrorism

Related Links:

Inside “The Wire”
Nancy Gibbs with Viveca Novak
Time Magazine, November 30, 2003

Guantanamo Bay: The Legal Black Hole
Johan Steyn
Lecture Delivered at Lincoln’s Inn Old Hall, London, November 25, 2003

Guantanamo Joint Task Force Home Page

U.S. and Australia Announce Agreements on Guantanamo Detainees
Department of Defense Press Release, November 25, 2003

The Army Lawyer: Special Issue on Military Commissions

Special Report: Guantanamo Bay
The Guardian

A Guantanamo-Sized Hole in the Constitution
Joanne Mariner
Findlaw, December 1, 2003

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