The Bush administration seems never to have put it quite so baldly but in its rush to consolidate its authority after the terrorist attacks of September 11, it came close to asserting the power of the commander in chief to declare anyone in the world, of whatever citizenship or location, “an unlawful enemy combatant” and—solely on the basis of that designation—to detain the person indefinitely without charge, beyond reach of any court. As we now know, it then acted on its own theory; according to a list being compiled by Human Rights Watch, alleged terrorists were detained at American behest in Mauritania, Bosnia, Indonesia, the United Arab Emirates, and Yemen—as well as Afghanistan and the border areas of Pakistan where most al-Qaeda and Taliban fighters were captured. Many of them were then turned over to the United States for transfer to the prison hastily constructed out of cargo containers in the American military enclave at Guantánamo, or other overseas detention centers used by the United States.1
The five years since the first shackled prisoners were unloaded at Guantánamo have not been uneventful for constitutional scholars, lawyers concerned with human rights, and journalists of an investigative bent. Their questions and discovery motions have shaken loose information, including the names of many detainees, out of a government committed to secrecy. That information has been used as kindling for a slow-burning debate on coercive interrogation that eventually led Congress—nearly two years after publication of the notorious pictures of naked Iraqis stacked and taunted at Abu Ghraib prison—to affirm legislatively in the Detainee Treatment Act of 2005 that existing laws and treaty commitments barring torture and cruel, inhuman, and degrading treatment (sometimes called “torture lite”) were still binding on American interrogators in what was grandiosely called “the Global War on Terror.”
At least the question of cruel, inhuman, and degrading treatment had been addressed; how effectively is another matter. The Supreme Court has also cautiously asserted its jurisdiction on detention issues, picking apart arguments made on behalf of an executive branch that hubristically called on the Court to stand aside and, essentially, let the President reign. But—as the remaining 395 captives at Guantánamo enter the sixth year of their imprisonment without a single one of them having been put on trial—the question of whether we’re prepared to hold terrorist suspects without charge for the rest of their natural lives has yet to be squarely addressed by either Congress or the courts. Decisions on detention issues have been handed down and laws have been passed. Some of these may now be revisited by the incoming Democratic Congress—in particular, the recent Military Commissions Act, which, among other things, denies non-US citizens who have been arrested and held in prison recourse to the writ of habeas corpus. But the question of indefinite detention itself—which might be construed as a core issue—hangs over our discussions like a far-off thundercloud, darkening a little with each passing year and each report of another suicide attempt at Guantánamo. From the standpoint of the detainees, nothing much has changed over the years.
The argument that putative combatants—would-be combatants who have merely been trained as well as those picked up in the vicinity of a battlefield—can be held in wartime until the end of hostilities isn’t in itself novel or controversial. What’s new in the current conflict, as it pertains to al-Qaeda and those detainees who are alleged to be its followers, is that no one can imagine the armistice or surrender that would signify an end to this war. In these circumstances, or so it now seems, indefinite could prove to be synonymous with endless; in effect, it could signify a life sentence. This would be a far cry from the preventive detention imagined as appropriate in a conventional war by the authors of the Geneva Conventions, which were intended as a rulebook ensuring humane treatment on all sides of those imprisoned for the specific purpose of keeping them out of military action. What has been at issue are the questions of whether the United States has legally been in a state of war since September 19, 2001, when Congress authorized the use of military force against those responsible for the attacks a week earlier, and if it has been, where that war begins and ends.
Also at issue, obviously, is whether—assuming we’re in a war that’s even bigger than the ones US troops have been committed to in Afghanistan and Iraq—the President is constitutionally entitled to unilaterally make up new rules and procedures for the treatment of captured supporters of terrorist movements. Since 2001, the United States has tended to cite those parts of international law that serve its purpose and shrug off, dispute, or discount others. “Customary laws of war,” the government has correctly argued, justify holding prisoners indefinitely without charge. At the same time, it has contended that the Geneva Conventions, the modern codification of “the customary laws of war,” don’t apply because al-Qaeda and its offshoots are not parties to them and, all too obviously, have no regard for their standards.
Terrorists who dispatch suicide bombers and behead hostages obviously don’t concern themselves with the welfare of civilians and prisoners, so there is little or no prospect of the reciprocity the Geneva regime encourages in conflicts between nations. But the conduct of al-Qaeda and its cohorts hardly relieves the United States of its responsibility to comply with the Geneva standards. The irony is that only the Geneva provisions on prisoners of war—a formal status denied the supposed terrorists the US has detained since 2001—provide a firm legal basis for indefinite detention without charge. According to the Geneva Conventions, those who are suspected of having committed terrorist acts can be charged criminally in front of a military or civil court; but the preventive detention of Islamic militants on the basis of a prudent or cockeyed suspicion that they may harbor terrorist ambitions is harder to justify in terms of existing international law or the US Constitution, which reserves to Congress the power to suspend the writ of habeas corpus in exceptional circumstances only: “when in cases of rebellion or invasion the public safety may require it.”
The outgoing Republican Congress effectively did just that as far as detained aliens, designated as “illegal enemy combatants”—or indeed any aliens—were concerned when it passed the Military Commissions Act of 2006 in the run-up to the election campaign, in hopes of making an issue of Democratic “nay” votes.2 That political tactic failed but the law is on the books. Now that Democrats have narrow control of the Senate Judiciary Committee, its new chairman, Senator Patrick J. Leahy, hopes to overturn what he has called “this sickening habeas provision.” Even if he is successful, there are still likely to be roughly 250 prisoners at Guantánamo alone facing indefinite detention without charge. A more carefully written law may make it possible for some among them, in the fullness of time, to challenge their designation as “illegal enemy combatants” and their imprisonment. But so far there has been no sign that Democrats care to wrestle with the premise that it’s legitimate to hold prisoners indefinitely without charge and to leave them to await the end of a war that shows no sign of ending. Staff aides dealing with detention matters say the Democrats are concentrating on “process issues”—restoring habeas corpus or whether the Uniform Code of Military Justice should govern the handling of evidence before military commissions—rather than the fate of individual prisoners.
The debate over detention issues—and action in the courts—has focused on Guantánamo but the Cuban outpost is only the most exposed of our prisons in this “war on terror.” The census and status of the more remote prisons is murkier but US forces also hold prisoners in Iraq and at the air force base at Bagram in Afghanistan.3 It’s possible that there are still other prisons borrowed from other governments that have yet to be uncovered or acknowledged. President Bush conceded in September that the Central Intelligence Agency did in fact maintain such prisons abroad; he said they weren’t being used at that moment but would be held in reserve. The striking decline of the prison population at Guantánamo in the last year or so—resulting from an effort to repatriate prisoners reclassified as NLECS (for “no longer enemy combatants”)—points to a possibility that still other facilities may have been found; either that or the government has arrived at a recognition that the United States cannot conceivably detain every would-be Islamic fighter in a world where new ones are appearing daily on the streets of Baghdad or in the frontier towns of Pakistan.
The number of prisoners at Camp Delta, as the prison at Guantánamo was officially named, was expected to exceed 2,000 in early Pentagon projections; in late 2002, it topped out at slightly more than 650. By late 2006, the Guantánamo census had declined to 395; an estimated 14,500 were being held at various Iraq locations and about 500 at Bagram. How many of the prisoners in Iraq and Afghanistan have been held for a period of years—and may continue to be held indefinitely—without charge is uncertain; how many are non-Iraqi and non-Afghan is also a matter of guesswork for those who don’t have access to classified information. (The organization Human Rights First, relying on official US figures, estimates that between 60,000 and 70,000 persons have been detained around the globe at one time or another by the United States since the first frantic efforts in 2001 to sweep up as many likely agents and contacts of terrorist networks as possible. The total ought to include the more than one thousand aliens, mostly Muslim, held in the United States after the September 11 attacks, on unrelated immigration charges or as so-called “material witnesses,” on orders of Attorney General John Ashcroft.)
In all, more than 250 Guantánamo prisoners have been repatriated. In some cases, their release appears to have had more to do with diplomatic pressure applied by allied countries in which they had legal residence than with the facts of their particular cases. Prisoners with residence in European countries predominated in the early releases. In other cases—by now, most of them—the releases can be reasonably read as a tacit acknowledgment that they were no longer a serious threat nor of any significant value from an intelligence standpoint and probably never had been. The State Department is seeking to negotiate the release of about eighty-five Guantánamo prisoners to foreign countries but is running into difficulties getting foreign governments to agree to American conditions for continued surveillance in some of these cases. A similar number have been listed by military authorities as potentially chargeable in front of the military commissions established by the President—and now given congressional approval in the Military Commissions Act—but only ten have been actually charged as of this writing. After subtracting these three groups—those who have actually been released, those the government seeks to release, and those who still stand to be charged—we’re left with a remainder on the order of 250 prisoners at Guantánamo who, it appears, after five years of severe confinement there, are deemed by their captors to be eligible for neither release nor charging. The plain inference is that their interrogators have come up with no evidence that they’ve been implicated in acts of terrorism but still consider them too dangerous to let go. These then—along with however many long-term prisoners might be locked away without charge in Iraq, Afghanistan, or other places where the United States continues to have some say over their fates—are the indefinitely detained of the war on terror.
The sense that normal legal restraints had been suspended showed up elsewhere. Italian magistrates charged agents of the Central Intelligence Agency in a kidnapping on the streets of Milan. In that case, "extraordinary rendition" to Egypt of the captured man appears to have obviated any need for him to be declared a combatant. (Also on renditions, see Raymond Bonner, "The CIA's Secret Torture," The New York Review, January 11, 2007.)↩
According to a statement signed by some thirty constitutional scholars, the implication of the government's position is that any foreigner living legally in the United States can be held indefinitely without charge once classified as an "illegal enemy combatant" by the president. The scholars were reacting to the case of Ali al-Marri, a citizen of Qatar, who was arrested in Illinois and has been held in solitary confinement since 2001 at the Navy brig in Charleston, South Carolina, where his family has been denied the right to visit him. See Adam Liptak, "In War with Vague Boundaries, Detainee Longs for Court," The New York Times, January 5, 2007.↩
Administration lawyers have cited a United Nations Security Council resolution recognizing the United States as an occupying authority in Iraq, passed after the start of the occupation, as a legal basis for the US continuing to hold security detainees in what's now considered to be a sovereign Iraq.↩
The sense that normal legal restraints had been suspended showed up elsewhere. Italian magistrates charged agents of the Central Intelligence Agency in a kidnapping on the streets of Milan. In that case, “extraordinary rendition” to Egypt of the captured man appears to have obviated any need for him to be declared a combatant. (Also on renditions, see Raymond Bonner, “The CIA’s Secret Torture,” The New York Review, January 11, 2007.)↩
According to a statement signed by some thirty constitutional scholars, the implication of the government’s position is that any foreigner living legally in the United States can be held indefinitely without charge once classified as an “illegal enemy combatant” by the president. The scholars were reacting to the case of Ali al-Marri, a citizen of Qatar, who was arrested in Illinois and has been held in solitary confinement since 2001 at the Navy brig in Charleston, South Carolina, where his family has been denied the right to visit him. See Adam Liptak, “In War with Vague Boundaries, Detainee Longs for Court,” The New York Times, January 5, 2007.↩
Administration lawyers have cited a United Nations Security Council resolution recognizing the United States as an occupying authority in Iraq, passed after the start of the occupation, as a legal basis for the US continuing to hold security detainees in what’s now considered to be a sovereign Iraq.↩