Chip Pitts [President, Bill of Rights Defense Committee; Lecturer, Stanford Law School]: "The recent transfer home from Guantanamo of ten more Saudi prisoners (and reports from Qatar News Agency that more of the final 13 Saudis may soon follow) suggests that the prison is one step closer to being closed — as demanded by even our closest allies and as acknowledged as a desirable goal since last year even by President Bush (subject to countries taking citizens back and there being trials where appropriate). The timing on the eve of the president's visit to Saudi Arabia may seem political, recalling how Chinese political prisoners are often released in advance of official U.S. visits. And the Pentagon's press release claimed, absurdly, that the decision highlights "the processes put in place to assess each individual and make a determination about their detention while hostilities are ongoing — an unprecedented step in the history of warfare." Although sending prisoners back is far preferable to attrition (and greater Muslim outrage) from more Saudi suicides at the facility, perhaps the administration's Guantanamo strategy has failed to an extent that even President Bush can finally grasp.

After all, the Supreme Court has repeatedly questioned the effort to set up Guantanamo as a realm beyond the law, and last month's arguments in the pending Boumediene and Al Odah cases gave no good reasons for a rosier view of Guantanamo (despite the addition of new justices Roberts and Alito). In 2004, the Court found in Rasul v. Bush that the detainees had a right to challenge their detention via habeas corpus, and in the 2006 Hamdan case, the Court found that the administration's military commissions plan violated the Geneva Conventions and that the court-stripping measures of the 2005 Detainee Treatment Act did not preclude pending habeas claims. Given those precedents, the Court certainly should not find now, after six years of Guantanamo detentions:

• that the supposedly speedy rights to habeas review have been legally removed (in the absence of the "invasion or rebellion" constitutionally required) or
• that the flawed "Combatant Status Review Tribunal" substitute offered (allowing secret evidence and evidence obtained by coercion, a military advisor in lieu of independent counsel, etc) — meets the demands of habeas, due process, international human rights and humanitarian law, or fundamental fairness.

As a practical matter, moreover, the release of hundreds of detainees without incident — more than two-thirds of the over 900 prisoners who have been held at Guantanamo at one time or another — confirms the military's own analysis (buttressed by the 2005 Seton Hall and other academic studies) that few Guantanamo detainees had any connection to al Qaeda or Taliban fighters. Vague allegations that a few have "resumed hostilities" have been found to be grossly exaggerated and misleading by another Seton Hall study. Even if true to a limited extent, however, this could be the predictable reaction that some might have to being held incommunicado without counsel, due process, access to family or friends and subject to abuse and torture for years. It hardly proves evidence of an original al Qaeda connection.

If evidence of terrorism or war crimes exists against any of the 275 remaining prisoners they should be tried by fair legal processes. If not, they too should be released to their home countries or to locations where they can be reliably confident they won't be tortured or abused (a test that can't be met by mere diplomatic assurances by nations like Libya that still resort to torture according to our own State Department). Although those most susceptible to release have been released, and numbers are dwindling down to the 80 detainees (including the 15 "high value" detainees) of greatest genuine concern, it's past time to end the overbroad, illegal, and counterproductive measures that have characterized the so-called 'war on terror'. Finally focusing instead on tailored, intelligent, lawful means to counter the growing number of actual terrorists would be much more moral, legal, and effective."