While debate raged on about where the primary 9/11 suspects would be tried—with the attorney general finally acceding to the will of the Congressional majority that they should be tried by a military tribunal at Guantanamo—nothing was settled regarding the basis for detaining those who may never be tried but are suspected of involvement with terrorism. These are the prisoners, also held at Guantanamo, against whom a criminal case would be difficult to construct but about whom there is other information that could be the basis for arguing that they are too dangerous to be released. They are the main reason President Obama was unable to fulfill his promise to close Guantanamo within a year of taking office.

This week, action regarding two cases on appeal suggests that we are still far away from having clear standards for detaining such people. In one case, a panel of the Court of Appeals for the D.C. Circuit heard oral arguments on the government's appeal of a district court's grant of habeas corpus to a Yemeni named Hussain Salem Mohammad Almerfedi. The panel and in particular Senior Judge Laurence Silberman, who in earlier opinions has complained openly about where the Supreme Court has left the law in such matters, seemed strongly inclined to overturn the district court's decision. In his commentary on the proceeding, Benjamin Wittes remarks that Silberman was “flirting with some big themes” and that the case “could make some big new law.” In the other development this week, the Supreme Court declined without comment to hear appeals of three other detainee cases coming out of the D.C. Circuit (which is the appeals court that hears most such cases). The Supreme Court was in effect saying that the lower courts will have to make do with the law they have and that it would not be issuing any additional guidance for now.

The Supreme Court decision that opened the gates to the kind of petitions that are giving Silberman heartburn was Boumedienne vs. Bush, which struck down an earlier statute on military commissions and declared that detainees have the right to have civilian courts review their cases. When the detainees in the Boumedienne case (six Algerians who had been scooped up in Bosnia) then had their petitions for habeas corpus considered in district court, Judge Richard J. Leon ordered the release of five of the group while ruling there was sufficient basis for continuing to detain the sixth. There is every reason to believe that Judge Leon and other district judges who have reviewed habeas petitions from Guantanamo detainees have made fair and reasonable rulings based on careful consideration of whether the preponderance of the evidence the government furnished led to a conclusion that the detainee in question was involved in terrorism. Moreover, the examination of classified evidence and the decisions being made in these cases are well within the scope of the sort of judging that federal judges are normally expected to do. Calling someone an unlawful enemy combatant does not change that.

Judge Silberman has a basis for complaining, however, that the law surrounding these judgments could be clearer. We will hear more about this issue for a long time, perhaps well after the question of civil vs. military trails seems settled.