To be frank, I’m more than a little surprised by this, as NPR’s coverage is usually top-notch. The relevant passage follows a clip from an interview with Mark Martins in which Mark argues that upcoming military commission proceedings will prove that process to be a fair and just one. The story continues:
Even if Martins is right, there is a complication — not everyone held at Guantanamo will get a hearing, which means some people may be detained without a trial.
Karen Greenberg, who runs the Center on National Security at Fordham University, says Guantanamo has codified indefinite detention by having detainees who have no legal recourse to contest their detention.
“Unless they try everybody, they haven’t tackled the hardest problem about Guantanamo and its legality,” she said.
That was it on the “recourse to contest” issue. Nevermind that every detainee at GTMO does in fact have the right to contest the legality of their detention in federal court via habeas review. There is plenty of room for debate about the particulars of how the federal courts have implemented habeas over the past three years, of course. Indeed, it would have been terrific for NPR to run a story exploring the dispute over how the D.C. Circuit’s caselaw on the subject, particularly Latif. But you can’t just deny that the system exists. Strange, too, to raise the subject of the legality of using military detention without mentioning that all the judges who have weighed in on the question since Boumediene have agreed that at least some categories of persons are lawfully subject to detention (even while disagreeing as to when the evidence in particular cases suffices to establish that specific detainees fall into one of those categories).