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.

Both of these tribunals will follow Justice O'Connor's guidelines fairly closely. For the initial review of each detainee's "enemy combatant" designation, the Hamdi standards are the baseline, even though the Guantanamo detainees are noncitizens. Each detainee was notified of his rights under the status review hearings as soon as the tribunals were finalized. Detainees have a right to be present at, and to provide evidence and call witnesses before, a tribunal composed of three military officers who are "neutral" in the sense that they have had no prior connection to the detainees. Going beyond AR 190-8 requirements--and hence, according to the Defense Department, beyond what O'Connor requires--each detainee is provided with a "personal representative" to help navigate the proceedings.

Likewise, the guidelines for the annual status-review panel (in the planning since at least last spring and issued September 14) put in place a number of similar procedural rights for detainees. The determination to be made by this tribunal, however, is not whether the detainee is an enemy combatant but whether he continues to pose a security threat or to offer significant intelligence-gathering opportunities. Detainees will have the right to attend the proceedings, will be represented by a military officer, will have access to unclassified material in their case, and will have the right to provide other evidence including written statements from family members and the detainee's national government. The final decision on whether to continue to detain an individual will rest with a designated civilian review official, currently Secretary of the Navy Gordon England. The Geneva Convention does not require any periodic review of detainee status, so this process is a potentially significant safeguard.

THESE NEW ARRANGEMENTS at Guantanamo should satisfy the concern for what civil libertarians call a "procedurally rich" approach to terrorism detention, but there have been some complications in the short run. The initial status review has proven much more involved and time-consuming than anticipated. Explaining to a detainee his rights under American procedures, the facts of his case, and how the process works is difficult enough. Add to this the fact that Guantanamo holds people from 40 countries speaking 17 languages and 19 dialects, and the scale of the challenge begins to register. The original goal was to run three review boards six days a week and to process as many as a dozen detainees in a day. The government hoped to complete its review of all 585 detainees in three or four months. As it is, six weeks into the process only 38 individuals have been completely vetted (though 200 files have been opened, and the Pentagon speaks optimistically of "ramping up" the proceedings). The new process made news September 8 when it led to the determination that one individual should no longer be held as an enemy combatant, and should be released. The designation stands in the other 37 cases that have been completed.

Civil libertarians raise several objections to these arrangements. First, they point out that the government has already determined that those detained at Guantanamo are enemy combatants (they are called as much in the order establishing the review tribunal). Second, some dismiss the new process as an end-run around the Supreme Court's decision to grant the Guantanamo detainees access to the federal courts. Third, they note that the personal representatives provided to prisoners to guide them through these proceedings are not attorneys, except in the case of detainees being tried for war crimes.

The first two objections are easily answered. While it is true that the new process essentially works to confirm or overturn the original determination that an individual is an enemy combatant (a determination the government insists was itself rigorous), it is hard to object to scrutinizing that earlier decision, especially given the procedural rights that inform the new process. Similarly, if a habeas petition is a means of forcing the government to justify in the open its decision to detain an individual, there can hardly be cause for complaint in the government's stepping forward to do precisely that.

As to the government's rationale for not providing lawyers to terrorism detainees, it has to do with the nature of the process. Since this is an administrative, not judicial, review, in which the only question is one of fact--whether an individual is a continued threat or likely source of intelligence--legal complexities and questions of guilt or innocence are not in play. There is nothing in the Geneva Convention, moreover, to suggest a right to an attorney in such circumstances. And, practically speaking, a right to attorney-client confidentiality for enemy combatants runs counter to common sense. For now, the legal wrangling continues. The 70 habeas petitions already filed, with the leadership and support of civil liberties groups, won't reach any substantive determination for several months.

All in all, the status-review tribunals introduce important procedural requirements and appear to represent an honest effort to address the concerns of civil libertarians, the Supreme Court, and the American public. In particular, Navy secretary England, the man responsible for overseeing the design and implementation of the new arrangements, has displayed a refreshing candor. He has consulted widely with groups like the International Committee of the Red Cross, Amnesty International, and the American Bar Association. He says he is committed to making the process "very fair, clear, precise, and transparent," and he has spoken regularly with the press. Unafraid to admit difficulties as they emerge, England stresses the need to remain flexible and to make improvements on the basis of experience and hindsight.

As sensible as these reforms are, however, they remain reactive and ad hoc. The government has announced, for example, that the enemy combatant status-review tribunals will apply only to the detainees already held at Guantanamo--the subjects of the recent Supreme Court ruling--and not to terrorists detained in the future. But once in place, the new procedures set a standard that is bound to acquire the force of precedent. So why not extend them to all similarly situated terrorist detainees?

Hovering in the background, too, are concerns about the war crimes trials taking place at Guantanamo. The military commissions are strictly separate from the status-review tribunals, but how we view the latter will undoubtedly be shaped by the reputation of the former. The military commission now at work has gotten off to a rocky start. Poor translations and confusion over procedural details marked the first weeks of the trials. The only member of the five-person commission with any legal training, the presiding officer, has been accused of bias because of his close personal relationship to the commission's "convening authority," who reviews commission decisions.

More general, long-standing objections to the very idea of military commissions in due-process-insatiable America also persist. One bold defense attorney at Guantanamo, a Marine Corps major representing one of the war-crime defendants, has questioned the very use of military commissions. While such commissions are in fact consistent with American constitutional history, one may wonder whether a historical standard not invoked since World War II is adequate to current needs.

Despite these question marks, the government's moves to bring orderly, transparent legality to Guantanamo come none too soon. Indeed, it is time to think of involving Congress in legislating permanent arrangements for terrorist detention that are capable of seeing us through what may be a long war.

Thomas F. Powers is an assistant professor of political science at the University of Minnesota Duluth.