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No Exit

If the “customary law of war” permits their continued imprisonment until the end of hostilities, their prospects seem exceedingly dim. Two questions bear on the legitimacy of their confinement: whether they have been rightly estimated to be part of a hostile enemy force or network and how it can be ascertained when hostilities have ended in this largely clandestine conflict. “Global War on Terror” may have had a certain ring as a battle cry, or at least some utility from a marketing standpoint as a brand name, but it muddies the detention issue, for it seems to imply that the US must remain at war, transforming itself into a permanent national security state, until terrorism—not any particular organized force but a diffuse phenomenon that has existed for more than a century—has been thoroughly banished from the world. In fact, Congress did not authorize a war on “terror” but granted the President authority

to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The administration sometimes acknowledges as much. “When administration officials refer to the war on terror,” John Bellinger, the State Department’s legal adviser, recently said, “we are not stating that we are in a legal state of armed conflict with every terrorist organization, everywhere in the world, at all times…. We do think we are in a legal state of armed conflict with al-Qaeda.”

Subsumed under that definition, one assumes, are the Taliban in Afghanistan and the foreign fighters connected to the force known as al-Qaeda in Iraq. An end to fighting in Afghanistan and Iraq may be nowhere in sight, but at least when it does finally occur we’ll presumably be able to recognize the fact. But how will anyone ever know whether the war with al-Qaeda has ended? An armistice cannot easily be imagined. Will the tribal regions along the border of Pakistan, where Osama bin Laden is supposed to be finding refuge, have to have been pacified? What methods could security officials use to certify that there is no network of “sleeper cells” remaining in the West? And if hopeful answers to these questions cannot easily be imagined, is it possible to imagine any political figure in authority declaring in the foreseeable future that this “war” has ended, or been sufficiently contained, to permit the release of supposed “hard-core” terrorist detainees at Guantánamo and elsewhere? If we look at the situation this way, the indefinite detention of combatants in this war seems not just open-ended but truly without limits, a predicament to which the “customary laws of war” do not offer an obvious answer.

The issue was much on the minds of some Supreme Court justices when oral arguments were heard nearly three years ago in the suit brought on behalf of Yaser Esam Hamdi, an American citizen by birth who’d been detained as “an illegal enemy combatant.” Repeatedly Justices O’Connor, Souter, and Breyer pressed the government’s lawyer to say when it might be appropriate for the courts to hear habeas petitions on behalf of prisoners held for many years in an unending conflict. “Doesn’t the Court have some business intervening at some point, if it’s the Hundred Years’ War or something?” an impatient Stephen Breyer demanded. “We recognize the viability of the writ of habeas corpus,” Paul D. Clement replied on the government’s behalf. “There certainly is a challenge that can be brought to the length of the detention at some point.”4 When that point would come and how it would be recognized were questions left unanswered by the government. Those questions were obviously still on Justice O’Connor’s mind when she wrote the opinion for the Court, holding that an American citizen designated as an “enemy combatant” was still entitled to due process and could not be imprisoned indefinitely without charge.

The plaintiff, she said, faced “the substantial prospect of perpetual detention.” If one accepted the government’s reasoning, she went on, “Hamdi’s detention could last for the rest of his life.” The ruling in Hamdiv. Rumsfeld established a legal double standard: indefinite detention without charge was now unacceptable for citizens but possibly quite all right for foreigners held in remote places by US armed forces and security agencies, though these foreign prisoners also faced “the substantial prospect of perpetual detention.” At best, it could be said that, with Hamdi as a possible precedent, there was room for eventual judicial review on that point—until the passage of the Military Commissions Act last fall, that is, which barred access to federal courts on habeas petitions by foreigners who had been designated as “illegal alien combatants.” Now, even if a Democratic-led Congress succeeds in removing that bar—a big if for the next two years, given the possibility of a presidential veto—it could be two or three years before a test case reaches the highest court. By then the longest-serving Guantánamo prisoners would be into their eighth year of detention without charge, with no end in sight.

Inevitably, if the fate of “illegal enemy combatants” once again becomes an issue before the Supreme Court, the relevance of the Geneva Conventions will be debated as it was last June in the case of Hamdanv. Rumsfeld. The majority then held that one of the flaws in the presidential order establishing military commissions was their failure to conform to what’s known as Common Article 3 of the conventions; specifically the failure of procedures that had been outlined to meet the article’s broad and elevated requirement that they offer “all the judicial guarantees which are recognized as indispensable by civilized peoples.” Writing for the Court, Justice John Paul Stevens noted that in the administration’s tribunals, the accused could be denied access to the evidence against them. “Absent express statutory provision to the contrary,” he said, “information used to convict a person of a crime must be disclosed to him.”

The Military Commissions Act, drafted a few months later, was a direct response and challenge to the Stevens ruling. It provided statutory authority for withholding evidence from the accused “to protect from disclosure the sources, methods, or activities by which the United States acquired evidence.” The Bush administration, of course, had argued from the start that the Geneva Conventions had no application to the struggle against a transnational terrorist group such as al-Qaeda. It now had to backtrack on its claim that the Constitution gave the president “plenary powers over military operations (including the treatment of prisoners),” but it retreated only slightly: while recognizing the existence of the Geneva Conventions, the same Military Commissions Act granted the president “authority for the United States to interpret the meaning and application of the Geneva conventions.”^5

Here again it’s open to question whether Democrats seeking to preserve something more than a marginal role for the judiciary on these issues will be able to get the votes needed to overturn a presidential veto, at least during the current Congress. Even if Democrats in the new Congress are blocked in their attempt to amend the Military Commissions Act, it could still make its way to the Supreme Court for review. Or a new administration and Congress, after 2008, could revisit some of these issues. What seems clear is that the question of indefinite detention won’t simply disappear and will eventually need to be addressed.

Who then gets to interpret the Geneva Conventions could matter a great deal to supposedly “hard-core” prisoners held in indefinite detention without charge and with little or no prospect of release. Such detention is permitted by the conventions for enemy combatants granted prisoner-of-war status in an “international armed conflict.” But there is no provision for indefinite detention in the cases of “protected persons” who have been detained but not charged in conflicts that don’t meet that standard. Oblivious of contradiction, the administration has paid lip service to the Geneva standards—President Bush has repeatedly pledged to adhere to their “spirit”—while simultaneously implying that taking them literally could be at least inconvenient, possibly dangerous.

Strictly speaking, the government contended, the struggle against al-Qaeda couldn’t be an “international armed conflict” because al-Qaeda isn’t a state, or a “noninternational armed conflict” because it sprawls across the borders of many states. Therefore, government lawyers argued (until they lost the argument in the Hamdan case), there is a lacuna in the conventions. The administration, which places a low value on what’s called international humanitarian law, came forward with no proposals on how to fill the lacuna it perceived. Instead, claiming a license to set its own standards unilaterally, it charged right through it. It’s as if its legal advisers sought to apply to international law their usual conservative precepts about “strict construction” and “the intentions of the framers.”

The fact that al-Qaeda wasn’t foreseen when the conventions were agreed on in 1949, however, hardly negates a larger truth about the conventions, which the Supreme Court has now recognized: that they were intended in the judgment of most experts to be entirely comprehensive, setting minimal standards of humane treatment for illegal as well as legal combatants. No class of warrior was exempted from the minimal legal protections built into Common Article 3. These include a prohibition on “outrages upon personal dignity, in particular humiliating and degrading treatment” as well as “cruel treatment and torture.” By now it’s more than obvious this was the language that worried administration officials, intent as they were on sending a message to interrogators on the urgent need for “actionable intelligence” on terrorist networks.

It’s possible to imagine a different kind of administration in which government lawyers might have worried about a different kind of lacuna in international law: the absence of any clear provision for preventive detention of fighters who view themselves as adherents of networks that spawn terrorist plots (and who therefore might reasonably be considered to be more dangerous than the traditional prisoner taken captive on a battlefield). With a view to maintaining alliances and building international support, such an administration might have thought about seeking an indictment of Osama bin Laden and his most conspicuous aides from the new International Criminal Court, which the United States has strenuously opposed under President Bush. It might have proposed negotiations on a new Geneva convention to cover the new situation. It might even have come forward to propose standards of due process for assessing and reassessing the threat posed by individual detainees. Dream on: that is clearly not the administration we are going to have for the next two years. It remains to be seen whether the new leadership at the Pentagon, following Donald Rumsfeld’s departure, will be willing to address a question that clearly never weighed on him: the question—it’s political as well as legal—of how long the system of indefinite detention can be sustained.

Tim Golden, in The New York Times, recently described a short-lived attempt by the military authorities at Guantánamo to make conditions there less severe. The plan even involved a new cellblock designed with an eye to encouraging communal exercise and meals, in conditions approaching those afforded traditional prisoners of war.6 By the time the cellblock opened in December, however, the military authorities had lost faith in the experiment. Following a riot and a mass suicide attempt in 2005 and three successful suicides last June, they clamped down and restored the ban on group activities for the detainees. “I don’t think there is such a thing as a medium-security terrorist,” Rear Admiral Harry B. Harris Jr. told the Timesreporter. In other words, the authorities at Guantánamo are once again operating on the premise that Donald Rumsfeld first articulated five years ago—that the prisoners there are “the worst of the worst.”

After the three prisoners successfully hung themselves from the wire-mesh framework of their cages in June, the commander of the detention center asserted that it was “not an act of desperation but an act of asymmetric warfare committed against us.” That’s a very convenient way of thinking. Another, less convenient, would be to grasp the possibility that desperation and a political outlook capable of inspiring “an act of asymmetric warfare” need not be mutually exclusive states of mind. Scores of unsuccessful suicide attempts at Guantánamo and mass hunger strikes, not to mention ordinary common sense, argue that more than a few of the prisoners have reached a state of desperation after more than five years of confinement that, for most of them, has included rounds of relentless interrogation, some of it, as we now know, grossly coercive, including isolation, sensory deprivation, stress positions, loud music, sexual taunting, and mockery of Islam. Instead of congratulating ourselves on allowing the prisoners to have Korans and listen to the call to prayers five times a day, we might renew the effort to ease the conditions of their day-to-day lives, which are harsher by some measures than conditions on death row in mainland prisons.

Even if we assume, for the purpose of discussion, that the military authorities are right in considering the indefinitely detained to be committed jihadists to a man, finding ways to ease the circumstances of their confinement might be seen as an investment in the possibility—however remote it may now seem—that they will one day return to their homelands. To put it another way, the government might take seriously the possibility that the US may one day be relieved of the political and moral burden involved in their perpetual detention without charge.

None of those released from Guantánamo has received an acknowledgment that there appear to have been no reasonable grounds for his detention, let alone an apology for the years snatched from his life, let alone even a modest attempt at compensation. In fact, Congress has had the foresight to bar damage suits by former detainees. Whenever questions are raised about cases in which reasonable grounds for suspicion are hardest to detect—the teenagers, septuagenarians, and Muslim travelers in war-afflicted regions who, whatever their motives or sentiments, never had a chance to get training as soldiers or bombers—official spokesmen can be relied on to allude to damning material in classified files that cannot be disclosed without damage to national security.

In some well-known cases such claims appear to be a matter of pure convenience—cases like that of Murat Kurnaz, a Turkish citizen, though born and raised in Germany. A couple of months after September 11, Kurnaz was pulled off a public bus in Pakistan at the age of nineteen and turned over to the Americans, who held him at Guantánamo until last August when he was finally released at twenty-four. That was a year and a half after a federal judge, sitting on a habeas petition in his case, declared in open court that most of the evidence in his classified file was actually exculpatory and there was nothing to support suspicions of American interrogators that he had al-Qaeda ties. The purported “intelligence” said he’d been close to a successful suicide bomber named Selcuk Bilgin and that, since he hailed from Germany, he might also have been an associate of Mohamed Atta. The Bilgin Kurnaz knew turned out to be alive in Bremen and the connection to Atta had never been based on anything more than the fact that they were two devout Muslim males, among tens of thousands, who resided in Germany. The September 11 ringleader was an Arab from Cairo who’d lived in Hamburg; Kurnaz, a Turk from Bremen, seventy miles away, spoke no Arabic before arriving at Guantánamo. But how was he to prove that they’d never been acquainted? No one in authority was in any hurry, it seems, to clear up a case that revealed nothing except the inability of some American intelligence officers to look on a religious Muslim of fighting age and imagine that he might not be an enemy.7

Kurnaz, now home in Bremen, appears to have emerged from the Guantánamo cages psychologically and spiritually intact. There’s the even more dismaying case of Jumah al-Dossari, a Saudi with Bahraini citizenship, who has attempted suicide twelve times, according to the official military count, and who’s still being held at Guantánamo. The purpose of Guantánamo is to destroy people and he’d been destroyed, he told his New York lawyer, a young volunteer from the firm of Dorsey and Whitney named Joshua Colangelo-Bryan. He could no longer trust people, the prisoner said, and he had no hope. In his fifth year of detention without charge, with no release in sight, that did not sound like an irrational assessment of his circumstances.8

  1. 4

    In his oral argument in the case of Hamdanv. Rumsfeld the following year, Clement suggested that the Authorization to Use Military Force resolution passed by Congress might imply the power to suspend habeas corpus in particular cases, given the so-called suspension clause in the Constitution, which says Congress can suspend the writ in instances of “invasion” and “insurrection.” A suspension of the writ could be “constitutionally valid,” he said, even if Congress “sort of stumbles on it” without the formal act envisioned in the Constitution. “You are leaving us,” Justice Souter retorted, “with the position of the United States that the Congress may validly suspend [the writ] inadvertently.”

  2. 6

    Military Takes a Tougher Line with Detainees,” The New York Times, December 10, 2006.

  3. 7

    A dispatch on the Kurnaz case by Richard Bernstein appeared in The New York Times on June 5, 2005.

  4. 8

    The al-Dossari case was described in detail by Stacy Sullivan in New Yorkmagazine, June 26, 2006.

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