It wasn't easy, but the Supreme Court, in Rasul V. Bush, ruled 6-3 that detainees at Guantanamo Bay may bring habeas corpus petitions in U.S. courts. The federal government interpreted that in narrow terms and, rather than actually allow court trials for the 750 detainees (now 550), the administration granted secret administrative reviews but not legal counsel and the petitions for actual court hearings continue to make their way through the legal system.
Guantanamo, a city state of 10,000 with a high school, McDonalds, Starbucks, roads, and only one purpose, leased from Cuba for $3,500 a year ($2,000 worth of gold in 1903), is supposed to be the place where the really really bad guys go. And there are really really bad guys there, maybe as many as twenty. Fifteen have been designated for trial and four charged with crimes.
The detainees are held indefinitely, subjected to (very well documented) spontaneous abuse. Six months ago more permanent facilities were built for the inmates. Prior to that they were held in fenced in pens. For their first weeks at camp they were not even allowed to move from their mattresses.
There are three ways out of Guantanamo. The first is death -suicide attempts are routine. The second is the court, but death is more likely. The third and best chance is if your country insists its citizens be released. That's what happened to Mamdouh Habib, an Australian who was released to his home where he now lives under a sort of low level house arrest (his passport has not been returned to him). But Habib is accused of plotting to hijack a plane and of providing the 9/11 terrorists with martial arts training. If the allegations are true then he is one of the truly bad guys. Not to be confused with the Bahraini citizen who lived in Pakistan, slipped over the border into Afghanistan, where he proclaimed he would make Jihad, before changing his mind and going home where he was later arrested.
In other words, a prisoner who wanted to fight Jihad but never did sits in prison indefinitely while a man who might have actually helped train the 9/11 terrorists is released to something less than house arrest in Australia (and is given $10,000 to appear on 60 Minutes) and will likely never go to trial. The new legal strategy of the lawyers who have stepped up to defend these clients is to visit their origin country and try to persuade the legislators there to insist on their client's freedom. Which is why the seven law firms that stepped up to defend the inmates following Rasul V. Bush divided the clients primarily by nationality.
The government cases on most of these people are soft. One was in an al Qaeda training camp for a week, in 1989. Another gave money to the Taliban. Still another had been accused of a 1996 bombing by the Saudi Government and then released. The official position of the American Government is that Hezbollah (a Lebanese Shiite group) was responsible for the bombing -the man is a Sunni. We have ten thousand people in Guantanamo looking after these prisoners many of whom if not innocent, are at least not high security risks. Non-the-less we torture them and keep them in solitary confinement for years. And the bad PR in these countries where these people are from just feeds the terrorist recruiting machine. And this is our money our government is spending to keep them there.
There's a reason we have a constitution, why we guarantee a right to a fair trial. Guantanamo Bay is not just an awful, expensive, misused facility, it's a slap in the face to the very idea of America. There's better ways to fight this war. There has to be.