The Magazine

The End of Gitmo Limbo

Figuring out what to do with enemy combatants.

Sep 27, 2004, Vol. 10, No. 03 • By THOMAS F. POWERS
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THE LEGAL LIMBO of the prisoners at Guantanamo is coming to an end. Spurred by the scandalous revelations from Abu Ghraib in late April and three Supreme Court decisions in late June, the administration is belatedly putting in place several layers of due process intended to ensure that the 585 detainees in the war on terror are being justly held. It remains to be seen how adequate and durable these arrangements will prove to be, but they are at the very least important steps.

In the past six weeks, three different kinds of machinery have been set in motion.

First, the detainees are undergoing a "status review." A new, formal, and relatively transparent tribunal is scrutinizing the government's original designation of each detainee as an "enemy combatant." This tribunal has been at work since July 30, and as of September 13 it had processed 38 detainees. A second, permanent tribunal will review each detainee's status designation every year.

Second, some 70 Guantanamo detainees have filed habeas corpus petitions in federal courts demanding that the government justify their detention before the bar. This right was granted them by the Supreme Court this summer in Rasul v. Bush. It may be that these challenges will be satisfied by the government's new status-review processes. But federal judges could insist that the government do more. Only future litigation will settle the question.

Third, a small minority of the detainees, named by the president, are being tried for war crimes. Special military courts at Guantanamo called "military commissions" began this work on August 24, when trials for 4 individuals got underway. Another 11 detainees may eventually be tried for violating the laws of war. Controversial ever since the president authorized it in November 2001, the use of military commissions to try war criminals is drawing close scrutiny from civil libertarians.

None of these new arrangements would be needed if the detainees were conventional prisoners of war. The treatment of POWs is detailed in the Geneva Convention, our prime legal guide in these matters. But most of the individuals held at Guantanamo were captured during the war in Afghanistan, fighting for al Qaeda and the Taliban. Because the Geneva Convention does not clearly provide for the treatment of individuals captured on the battlefield who fight without connection to a recognized political authority, or outside an organized military structure, or not in uniform, the United States accorded these prisoners the legal status of "enemy combatant," a designation that includes both "lawful" and "unlawful" combatants. Under Geneva, lawful combatants who are captured become POWs, while unlawful combatants are treated as war criminals.

Designating the Guantanamo detainees enemy combatants raises novel legal and procedural problems the government had not adequately addressed until confronted with Rasul v. Bush. By giving the Guantanamo detainees the right to file habeas corpus petitions in federal court, the Supreme Court forced the Defense Department to set up a process by which to justify more clearly their detention. The government had to act so that, as one official put it, "when and if there are habeas petitions, . . . the government will be in a position to say that we fully satisfied our legal obligations."

In another decision handed down this summer, the Court gave further guidance. In Hamdi v. Rumsfeld--a case involving a terrorism detainee who is a U.S. citizen and who therefore is entitled to a higher standard of procedural protection than noncitizens like the Guantanamo detainees --Justice O'Connor sketched what she deemed acceptable due process for enemy combatant detention. O'Connor said that an individual in Hamdi's situation--he was captured in Afghanistan--should be granted formal notice of his status and an opportunity to challenge it before a neutral decision-maker. She also said that a military commission would be an acceptable forum for such a proceeding, and she cited approvingly procedures for processing POWs and other detainees laid out in Army Regulation 190-8, a general regulation governing military detention.

TO PUT THESE PRINCIPLES into practice at Guantanamo, the government has created a new Office for the Administrative Review of the Detention of Enemy Combatants, under whose authority the initial Combatant Status Review Tribunal is already working, and the longer-term annual Administrative Review Board will eventually function. In addition, in July the Defense Department created an Office of Detainee Affairs to oversee a Joint Coordinating Committee representing a variety of intelligence agencies and Pentagon offices, and to interact with the International Committee of the Red Cross. But it is the two status-review tribunals that will do the real work of bringing due process to the detainees.