Habeas Schmabeas and the End(?) of Guantanamo

January 22, 2009: President Obama orders the detention facilities at Guantanamo Bay, Cuba to close within a year.

But 172 detainees still remain in custody today.

You can see this information, and an graphically illustrated history of the Guantanamo detention facility, on the New York Times' Guantanamo Docket.

Guantanamo is a symbol of the hot debate surrounding the detention and treatment of suspected terrorists.  At the heart of the issue we encounter challenging questions about how far we are willing to compromise the rights of detainees - both citizens and non-citizens - for the sake of security.

One such right, Habeas Corpus, pops up frequently in detention cases. Habeas Corpus, the right of a person to compel a justification of the lawfulness of their detention before a court, is so fundamental to protecting people from the abuse of governmental power that the founders wrote it right into the Constitution.  Constitutional Law texts invariably Hamdan, Hamdi, and Boumediene as the key, recent detention cases featuring a writ of Habeas Corpus.  These three cases had the overall effect of reinforcing the right of all persons, citizens and non-citizens and suspected terrorists alike, to petition for habeas corpus, regardless of whatever Congress' terrorism defense legislation says.

I found the the award winning This American Life radio show episode "Habeas Schmabeas" particularly valuable because it stepped past legal form and statistics and asked for the perspectives of persons who actually experienced detention for suspected terrorism.  It tied high falutin expressions of constitutional law in with real peoples' stories.

From the official description:

The right of habeas corpus has been a part of our country's legal tradition longer than we've actually been a country. It means that our government has to explain why it's holding a person in custody. But now, the War on Terror has nixed many of the rules we used to think of as fundamental. At Guantanamo Bay, our government initially claimed that prisoners should not be covered by habeas—or even by the Geneva Conventions—because they're the most fearsome enemies we have. But is that true? Is it a camp full of terrorists, or a camp full of our mistakes?

My favorite part of the episode is hearing the poem the detainees shared around with each other - it's towards the end, but it's worth the listen.

The TAL episode leans towards a critical view of U.S. authorities overseeing terrorist detention programs, but that doesn't make that the right or even the best response to these stories, and to terrorist investigation in general.  What do you think?