The perception that the Bush administration has systematically denied due process to the more than 650 alleged "enemy combatants" at Guantanamo Bay has both shocked Americans who care about the rule of law, me included, and done America enormous damage in world opinion. But the system may be starting to work. Indeed, it may have been working for some time better than I had thought.
Guantanamo detainees who are not to be criminally prosecuted may soon get at least the beginnings of a fair opportunity to show an informal "administrative review board" that they are not dangerous and should be released, or at least transferred out of U.S. custody. That process is detailed in a tentative Pentagon discussion draft that is soon to be posted on the Internet for public comment. Meanwhile, five Britons and some others are soon to be transferred to the custody of their home countries. And the administration has made a plausible case that its process for deciding whether to send prisoners to Guantanamo — where detainees from more than 40 countries have been held for as long as two years — has far more rigorous safeguards than had previously been disclosed.
The prospect of a Supreme Court spanking in the midst of the president’s re-election campaign appears to have focused some high-level minds on the need to pay more respect to law and world opinion. The justices have slated three big "enemy combatant" cases — two of them over administration objections — for decision this summer. And as one knowledgeable source puts it, this has affected the "continuing debate in this administration between those who wanted the most hard-assed and grudging approach to justifying our actions as a matter of law and policy, and those who wanted a more forthcoming approach. The hard-asses have gotten us some black eyes that we didn’t need. Now the approach has become more forthcoming."
Most of the publicity about Guantanamo has focused on controversy over the administration-created military tribunals that are slated to try some detainees, beginning with two alleged associates of Osama bin Laden who were charged on February 24 with conspiracy to commit war crimes. But the administrative review boards will affect many more detainees, perhaps for decades to come. The reason is that the administration’s apparent intention not to prosecute detainees for mere affiliation with Al Qaeda or the Taliban will rule out criminal trials for the vast majority.
The administration rightly claims power under the law of war to protect Americans from future attacks by detaining and interrogating captured Qaeda and Taliban fighters with or without criminal charges until hostilities with those organizations have ended. But since this war could go on indefinitely, pressure has been building to sort out the dangerous detainees from those who can safely be released or transferred abroad. The Pentagon discussion draft is a pretty good start.
The draft calls for annual reviews of each detainee’s case by a three-officer board to determine whether the detainee remains a threat and, if appropriate, to recommend his release or transfer. Each detainee could appear before the board and make his best case that he poses no ongoing threat (or never posed one in the first place), with input from his home country’s government and any witnesses who might vouch for him.
This process will fall far short of satisfying libertarians and human-rights activists who argue that any detainees who are not prosecuted must be released. I, on the other hand, don’t doubt the need for prolonged preventive detention in some cases. But the discussion draft seems to me to have at least one big flaw: The process that it would put in place would not provide the detainees with lawyers.
To be sure, the process would assign each detainee a kind of quasi-lawyer — a military officer to help show why the detainee should be released. But that’s not good enough. Even the most harmless detainee might well need the help of a trained professional to marshal evidence, locate witnesses, make a persuasive presentation, and create a record for review by the senior Pentagon official who will ultimately decide whether to take a chance on releasing him. And a review process without lawyers would be derided in world opinion as a kangaroo court.
Top Pentagon officials fear that lawyers — with their penchant for shutting up their clients — would impede the interrogations that the officials deem vital to obtaining potentially life-saving intelligence. But virtually all Guantanamo detainees have already been questioned for more than a year. They aren’t likely to reveal any still-timely secrets at this late date unless persuaded to cooperate. And if the evidence of the detainees’ enemy-combatant status is as strong as the Pentagon claims, any good lawyer would advise that cooperating is their best hope of being released.
The discussion draft presumes that every detainee at Guantanamo is, in fact, an enemy combatant. I have previously (in my July 26 column) cited reasons to doubt this supposition, and to suspect that dozens (or more) may be civilian noncombatants or hapless Taliban conscripts who fell into the hands of unscrupulous bounty hunters. The Pentagon sought to put such suspicions to rest on February 13, by detailing for the first time its process for determining who ends up at Guantanamo. Officials described multiple overlapping layers of review by military screening teams, lawyers, and intelligence and law enforcement officials in Afghanistan and at the Pentagon, as well as by interrogators, behavioral experts, and criminal investigators (among others) at Guantanamo. The process sounded impressively careful and far less error-prone than one would have suspected from previous disclosures.
It remains unclear, however, whether anything like the current screening process was in place in 2002, when most of these detainees were sent to Guantanamo. And it remains debatable how many have ever been processed by a "tribunal," as required by the 1949 Geneva Convention on the treatment of prisoners of war. The problem here is not the complaining by habitual America-bashers that the U.S. has brutalized the Guantanamo detainees and denied them the rights of prisoners of war; in fact, the detainees have reportedly been treated rather gently, and Qaeda and Taliban fighters are unlawful combatants with no rights to prisoner-of-war status. The problem, rather, is Article V of the Geneva Convention, which requires the convening of a "competent tribunal" to resolve "any doubt" whether a captive should be treated as a prisoner of war.
The administration has claimed from the outset that no such tribunal was required because there was never any doubt that each and every detainee sent to Guantanamo was an unlawful combatant. This claim has long seemed dubious on its face. The more cogent defense of the administration is that its current screening process, at least, "more than satisfies the letter and spirit of Article V," in the words of David Rivkin, a Washington lawyer and expert in the law of war. But the administration itself has not bothered to make that case publicly. Its failure to do so has contributed mightily toward making Guantanamo a symbol abroad of American lawlessness.
That’s one of the reasons the whole world will be watching what the Supreme Court does in Al Odah v. U.S., a pending appeal by families of Guantanamo detainees. The justices are well aware that a decision upholding the administration’s claim of power to do anything it wants to these detainees — without answering to any court in the world, ever — would solidify the image of the U.S. as a lawless bully. Indeed, in this sense, a ruling for the administration would harm its own image abroad. But a ruling against the administration would amount to a grave and unprecedented assertion of judicial power to review the detentions — and perhaps to order the release — of military prisoners held outside the U.S. during wartime. That would be a deep intrusion into the war powers of the president and Congress.
Congress: There’s the solution to the Court’s dilemma. It has abdicated its own powers to help resolve the hard issues raised by the "enemy combatants" both at Guantanamo and in the military brig in South Carolina where two U.S. citizens are locked up. The justices should send Congress a forceful reminder of its own responsibility to specify detailed rules for administrative and judicial review of all long-term detentions of alleged enemy combatants, and of Bush’s military tribunals, too.
It is, after all, Congress — not the president, not the judiciary — that the Constitution assigns "to make Rules for the Government and Regulation of the land and naval Forces," and "to define and punish … Offenses against the Law of Nations." And it’s past time for Congress to do its job.