Now that charges have finally been filed against David Hicks, it occurred to me to wonder what would happen if the trial proceeds and he is acquitted. The answer, it appears, is nothing. More precisely, if acquitted, Hicks will go back to Guantanamo Bay unless and until the US Administration chooses to release him.

That at least was the situation in 2002 according to this article by Ronald Dworkin, stating that the Pentagon reserves the right to hold detainees indefinitely, regardless of the trial outcome. And a group of Chinese Uighurs were held at Guantanamo for more than a year after military review panels had determined that they were not enemy combatants. This Wikipedia article includes a statement by Rumsfeld to the same effect.

Maybe this has been changed by the legislation passed last year. But if so, I can’t find any evidence to this effect. In fact, by removing any rights for aliens declared as enemy combatants by the Administration, the Military Commissions Act appears to confirm the power claimed by Rumsfeld to hold Hicks (or any non-citizen) without any resort to habeas corpus and regardless of any trial outcome.