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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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.