No Exit

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.

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 (In apparent contradiction, Congress claimed authority for itself to interpret the meaning of the Geneva treaties, flatly declaring that the tribunals it was authorizing met the requirements of Common Article 3, Justice Stevens notwithstanding.)

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