The Right Coast

August 09, 2004
Guantanamo and Rasul
By Mike Rappaport

Here and here are two criticisms of the Bush Administration’s implementation of the Supreme Court’s Rasul decision, which held that the prisoners at Guantanamo had to be given access to the courts to file habeas petitions.

The criticisms imply that the Bush Administration is flouting the rule of law, but that is hardly the case. Rasul was a narrow decision. It did not indicate that the prisoners were entitled to the full panoply of constitutional rights that ordinary criminal defendants receive. In fact, it was decided on the narrow statutory ground that the prisoners have access to the court for habeas corpus review to determine the legality of their detention. The decision did not recognize any other rights for the detainees. For what it is worth, Rasul itself was questionable and appeared to depart from prior precedent.

While the critics can wish that the Bush Administration would treat the Guantanamo detainees as ordinary criminal defendants, there is nothing in the law, at least not yet, that requires it. And thus the Bush Administration would appear to be acting responsibly and legally.