THE BUSH ADMINISTRATION has a shameful record when it comes to detainees at Guantanamo Bay Naval Base who assert that they are wrongly being held as "enemy combatants." At first, the administration argued that detainees had no right to consult a lawyer, period. Later, it had to disavow a mean-spirited attack by a Pentagon official on lawyers who had dared to represent "terrorists."
Now the administration is rightly being criticized for asking a federal court to scale back the detainees' access to their lawyers (only three visits once an attorney has been retained) and to place restrictions on attorney-client mail. The rationale for the crackdown is that lawyers have encouraged a hunger strike and other "threats to security" by informing detainees about events in the outside world, including the war in Lebanon and prisoner abuse at Abu Ghraib.
Officials at Guantanamo have a right and responsibility to maintain discipline. But, as the president of the New York City Bar Assn. pointed out in a letter to Atty. Gen. Alberto R. Gonzales, there is another explanation for hunger strikes and other unrest at Guantanamo: Many detainees have been held in solitary confinement and haven't received a meaningful opportunity to assert their innocence. In many respects, Guantanamo is still a legal black hole.
Blame for that state of affairs lies not just with the administration but with Congress. It was Congress that voted last year to deny detainees the right to challenge their confinement in court by applying for the ancient writ of habeas corpus. And it is Congress -- even under Democratic control -- that has failed to pass bipartisan legislation to restore habeas protection.
No doubt the nearly 400 remaining detainees at Guantanamo -- down from almost 700 -- include some dangerous terrorists. But evidence suggests that others were caught up in the understandably indiscriminate post-9/11 dragnet in Afghanistan. Why not let them make that argument with the best available defense?
The Habeas Corpus Restoration Act of 2007, co-sponsored by Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) and Sen. Arlen Specter (R-Pa.), offers a sensible approach to protecting civil liberties while proceeding against suspected terrorists. With it, Congress and the president have the opportunity to demonstrate faith in American legal principles and confidence in our institutions.