A Military Order issued by President Bush on 13 November 2001 (1) set out the conditions by which such prisoners would be held and tried under military law. This order specifically rules out an appeal to any court, whether state, federal or international, in the United States or anywhere else in the world...

...A challenge to this in the American courts failed with a ruling that prisoners held in Guantanamo Bay do not have the protection of American domestic law. They are not American citizens and are not (and in most cases have never been) on American soil.

Right there we can see the reason that the prisoners were located in Cuba, and not in any of the fifty states. Next, the prisoners were denied prisoner of war status, which would have required adherence to the Geneva Conventions and the Uniform Code of Military Justice. Instead, the prisoners were defined as unlawful combatants.

Let's look at these unlawful combatants to see whether they are terrorists. In February 2006, Seton Hall law professor, Mark Denbeaux, released a report on the detainees at Guantanamo.

So far just 10 of the detainees have been formally charged with crimes and are headed for military tribunals.

According to the report, 55 percent of the detainees are informally accused of committing a hostile act. But the descriptions of their actions ranged from a high-ranking Taliban member who tortured and killed Afghan natives to people who possessed rifles, used a guest house or wore olive drab clothing.

The report also found that about one-third of the detainees were linked to al-Qaida; 22 percent to the Taliban; 28 percent to both; and 7 percent to either one or the other, but not specified...

...Of the approximately 760 prisoners brought to Guantanamo since 2002, the military has released 180 and transferred 76 to the custody of other countries.

One hundred and eighty people have been outright released from Guantanamo Bay. That is 24% of the people that have been detained there. Nearly one in four of the detainees were not considered dangerous enough to warrant their continued imprisonment. They were not deemed to be terrorists. Approximately 170 of the prisoners are thought to be associated with the Taliban, but not with al-Qaeda in any way. Many of these 'Taliban' fighters probably fit into the 'people who possessed rifles, used a guest house or wore olive drab clothing' category. So, the first thing we need to acknowledge is that the fact that someone has been detained in Guantanamo does not mean that they are a terrorist or a danger to the United States. What we need is a way to make a determination about the nature of the detainees that makes sense and is just. All these right-wing talking points about how Democrats want to coddle terrorists are baloney.

But, there is a larger problem. The administration's military commissions (just struck down in Rumsfeld v. Hamden), have never been implemented. As mcjoan points out (quoting Neal Katyal, Georgetown University professor):

Not a single person was tried in these military commissions even though the administration said four and a half years ago "We don't have the time to legislate. Congress, you take too long to authorize these commissions. We need to do it right away because we need to try these people." They didn't even indict someone for two and a half years under these commissions. And when they did indict someone, they only indicted a total of ten people. This was not really...about trying terrorists... It was about service to an agenda, an agenda of Presidential powers in a time of crisis...The administration took the view that not only would it advance these extreme claims of executive power but it would do so in a context in which they said the courts have no business...

And this is where the Bush administration has overstepped its bounds and really screwed up. Because they decided to torture the detainees in Guantanamo, they needed an new kind of judicial procedure to handle their cases. They couldn't use the regular U.S. courts and they couldn't use military courts martial either. But, the Supreme Court, in denying the administration the ability to use military commissions (at least in the absence of express Congressional authorization), has now invalidated any evidence that might be produced at a trial for these prisoners. And, since many of them are extremely dangerous, that leaves us in a quandary. We cannot convict them in a court and we do not want to release them.

When the Republicans try to figure out a way to solve this problem for the administration they are going to discover that it represents a brick wall.

Again, from mcjoan's excellent diary, quoting Kaytal.

Yesterday I was debating John Yoo on the Newshour...who said "well we can't have courts martial because the problem with that is that sources and methods will be revealed in trials... "The court martial system has done a very, very good job in protecting intelligence information of the most seriously classified nature.... there are some deeper problems with this claim. First of all, 95% of the evidence in these commission cases is just the detainees' own statements to interrogators...and the other 5% to my knowledge has never been about sources and methods. It's like public videotapes by journalists and things like that.

The only source and method that I know of, and I'm privy to the commission defense process...the only thing...that might come in to play is the source and method of interrogation. The source and method of interrogation. Why did the detainee say these things. And that's what's hidden by the words "sources and methods." The methods that they are talking about are the methods of interrogation. And what the commission process has been about in part, is about trying to get evidence obtained by coercion into criminal trials and permit that evidence be introduced against defendants...

What has been going on in this commission process has been a lot about trying to get evidence in, coerced evidence, that...really...does not speak well for us as a nation. If we really do feel the need to introduce that type of evidence into a proceeding, it has to be done in the clearest terms by Congress, and I don't frankly think whatever the legislative path is in the days to come that that will be a part of it.

Now, Kaytal doesn't think that Congress will look to approve coercive interrogation (torture) in their upcoming debates over how to handle Guantanamo detainees, but there is no way to avoid it because the prisoners have been tortured.

So far, right-wing outrage has been mainly focused on the 'liberal' judges that ruled against Rumsfeld. But, railing against the judges won't change the cold, hard, reality of their ruling. The right-wing is using the following talking point to hit back on Democrats over their judicial defeat.

Can the woman who may be the next Speaker of the House really think that extending Constitutional safeguards for imprisoned Guantanamo terrorists somehow protects the American people? Or is she simply so blinded by leftist ideology and a pathological hatred for George Bush that she is willing to support Constitutional protections for enemy combatants in order to defeat him?

This is strong stuff. First, as I have mentioned, we cannot presume that everyone in Guantanamo is a terrorist. In fact, having already released 24% of them, we know that mere imprisonment there is not a good indication of guilt. Second, irrespective of whether the court is blinded by leftist ideology, their ruling stands. Third, the Senate just passed the McCain anti-torture amendment by a 90-9 vote. It seems unlikely that they will turn around and allow torture to be overlooked in criminal proceedings. This all leaves the prisoners in Guantanamo in legal limbo.

The Court expressly declared that it was not questioning the government’s power to hold Salim Ahmed Hamdan “for the duration of active hostilities” to prevent harm to innocent civilians. But, it said, “in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”

The Court has said that we can hold these detainees for the "duration of hostilities", and in a war on terror, that means for the rest of their lives. But, we cannot try them in the way the administration wanted to try them. Congress must come up with some solution, but short of retroactively authorizing the introduction of torture-induced testimony, they have no way of crafting a solution.

If you want to blame liberals for this, go ahead. I'm more inclined to blame the Bush administration for ignoring our warnings about using torture and tainting the possible prosecution of dangerous terrorists.