As the Supreme Court deliberates on the most recent Guantanamo Bay cases and whether detainees can be denied of access to a real court, the Washington Post is reporting that American officials held a teenager for years despite their knowledge that he was innocent. Indeed, only months area the U.S. seized Murat Kurnaz in Pakistan, it concluded that he was not guilty.  However, he sat for four more years in Cuba.

A German intelligence officer confirmed in a memo months after his capture that  “USA considers Murat Kurnaz’s innocence to be proven, . . . He is to be released in approximately six to eight weeks.”  Instead he was declared dangerous by two of the Bush Administration’s military tribunals, which have been ridiculed internationally as sham proceedings.

It is a case that reaffirms the need and value of access to true courts. If he had been brought before a real judge in a real legal proceeding, Kurnaz could have been released not long after his capture.  Yet, the Administration in the current Supreme Court cases insists that President Bush can deny any such access to the courts. Unlike the prior two cases where the Court ruled against the Administration, President Bush is now able to claim congressional authority under a bill secured at the end of the last Congress.   

The consolidated cases, Boumediene v. Bush and Al Odah v. United States, Nos. 06-1195 and 06-1196, were heard in oral argument this week.  In 2002 Lakhdar Boumediene and five other Algerian natives were seized in Bosnia.  The President is using the Military Commissions Act of 2006 (MCA), which eliminates federal courts’ jurisdiction to hear pending habeas applications from detainees who have been designated.

In oral arguments, Justice Breyer asked a question about the failure of the act to offer a reasonable alternative to habeas in an exchange that fit the Kurnaz case (as well as those before the Court):

BREYER: “I’m from Bosnia. I’ve been here six years. The Constitution of the United States does not give anyone the right to hold me six years in Guantanamo without either charging me or releasing me.” The MCA provides for federal court review on the limited question of whether the CSRTs followed their own made-up procedures, and not on the big important matters of, er, you have the wrong guy.

CLEMENT: “I’m not sure he can make that argument.” 

BREYER: “Exactly!”  . . . If he cannot make that argument, how does this become an equivalent to habeas?”

Once again, many democrats are fuming about the failure of the democratic senators to filibuster the legislation, which is a fundamental denial of American values. Instead, as in other areas, the democrats either supported the legislation or publicly opposed without using their ability to stop it. Now, we are again being held up to international rebuke for our double standards. In the meantime, cases like Kurnaz demonstrate the value of judicial review to prevent abuses.

With Sam Alito on the Court, this will be close. It will come down to Kennedy. What is curious is that the case was originally denied but then, in a rare act, the Court reversed the decision and accepted the case.

For the Post story, click here