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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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.