Clearly, the Bush administration hoped it would never come to this, but a day of reckoning over detainees in Guantanamo is approaching quickly. Lawyers for the Justice Department appeared in a Washington federal courtroom Tuesday to argue for yet another delay in deciding how to deal with most of the 270 individuals who remain confined at the island prison, only to be rebuffed by a stern judge. “The time has come to move these forward,” Judge Thomas F. Hogan told the lawyers. “Set aside every other case.”

It’s about time — in fact, long overdue. The hearing was the direct result of the recent Supreme Court ruling that granted detainees the right of habeas corpus — the right to ask the government why they are confined. Incredibly, some of the detainees have been held since 2002 without trial. But even more incredible was the Justice Department plea at Tuesday’s hearing: It asked for a delay of eight more weeks so it could update and add to the evidence used originally to justify holding the detainees.
To its credit, the court was skeptical, to say the least. Judge Hogan said he could not fathom why evidence would suddenly have to be changed if it had been considered strong enough to warrant holding the detainees for periods of up to six years. “If it wasn’t sufficient, then they shouldn’t have been picked up,” the judge declared.

Judge Hogan’s admonition may have come as a shock to government lawyers, given that the Guantanamo process has been devoid of either common sense or legal logic since its inception.

In the immediate aftermath of 9/11, confronting a new kind of enemy, the administration created a new kind of prison where standard rules of evidence and procedure used in military and civilian courts did not apply. Six years on, the courts are saying it’s time to get back to playing by the rules.

If they’re wise, the Justice Department lawyers will comply. Judge Hogan is in charge of processing Guantanamo cases for eight of the nine federal judges in Washington who will deal with the 200 or so pending habeas corpus motions. His ruling and others have made it abundantly clear that the detainees cannot be held indefinitely just on the government’s say-so. That is the compelling reason for these cases to move ahead without delay.

In cases where the government’s evidence is either weak or nonexistent, judges will be able to order suspects released, but they lack authority to bring detainees into the United States. That’s why the Bush administration should be working overtime to find countries that will take them back. It has managed to stall for six long years, but the day of reckoning is around the corner.

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