Guantanamo Detainees: What to Do with Alleged TerroristsWithout a doubt one of the pivotal moments of the modern era was the terrorist attack on the World Trade Center and the Pentagon on September 11, 2001. Following those attacks the U.S. began an offensive pursuit of those terrorists and others, to bring them to justice. What has also followed has been the testing of the domestic and international legal systems. Pursuing terrorists under the customary norm of self-defense has proved not only necessary to thwart future attacks, but quite effective. However, the pursuit of threats is not without problems, namely what to do with alleged terrorists once they are caught. One of the controversial tactics the U.S. has used for the past eight years has been the detention of "enemy combatants" at Naval Base Guantanamo Bay, Cuba. It has divided politicians and lawmakers, stimulated debate amongst critics and challenged the American image in the world. Guantanamo Bay is a place that stirs many emotions. It is also a stain on the image of America. The debate over Guantanamo and the U.S. detention of alleged terrorists is rooted in legal, political, and emotional challenges. The following analysis will attempt to peer through the complicated web of rhetoric, debate and legal frameworks to examine the overarching question, what do we do with modern day terrorists?
IN THE BEGINNING
"The plan is there is no plan" may have been the initial construct of our detention framework; at least in retrospect it appears that way. Listening to critics of the Bush administration one might get the impression the policy was to shoot first, ask questions later. But there is more to the former policy and the current one now shaping up under the Obama administration. Understanding where we are today with regard to terrorists detained at Guantanamo is a challenge by itself. The foundation of today's debate is derived from several key factors. From the 1949 Geneva Conventions to the recent statements by Attorney General Eric Holder, U.S. policy regarding terrorist justice has evolved. So, who have we been fighting in this formerly named Global War on Terror? Are they an enemy force or are they criminals? What rights do they have, if any? These distinctions are important to determine because they affect the rules of the game.
The third Geneva Convention in 1949 dealt with the issue of Prisoners of War (POWs). In it are the specific provisions that define a POW. Also, in it are provisions for the appropriate treatment of POWs, such as, being protected, retaining full civil rights, and repatriation following the end of conflict. All categorizations of POWs indicate a person was in some way part of a state supported force. In other words, a POW is member of a military or military-like force. The language of the Convention includes these definitions:
- Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces
- Members of other militias and members of other volunteer corps, including those of organized resistance movements
- Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power
- Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors
- Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft
- Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war (Article 4, III Geneva Convention, 1949)
A TERRORIST, A COMBATANT, AN ILLEGAL ENEMY COMBATANT…WHICH IS IT?
There is little dispute that the U.S. is authorized to detain subjects as a result of armed conflict related to counterterrorism. In a March 2009 statement and clarifying memorandum, U.S. Attorney General Eric Holder and his office, reiterated this point. He said (2009), "the use of force includes the power of detention…the United States has the authority to detain those who were part of al-Qaida and Taliban forces" (p. 5). This is consistent with the UN Charter's expressed right of states to act in self-defense (Article 51, UN Charter). But what has been disputed is the issue of what to do with those who become detained since the length of armed conflict is seemingly indeterminate. POWs can be detained with proper treatment consistent with Common Article 3 of the Geneva Conventions throughout the duration of a war. But, at the end of that conflict jus cogens rules require those POWs be repatriated. What then of al Qaida and Taliban suspects who are not legal combatants, hence legally POWs?
On February 7, 2002 President Bush exercised his authorization regarding the use of force granted by Congress. In a statement he declared (2002), "I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva" (p. 2). He also removed POW status to al Qaeda members. The answer was clear as to what they were not. Detainees, which ultimately were held in Guantanamo Bay, Cuba, were a different category of enemy personnel. They were "unlawful combatants". As such, their rights to justice were different than previous detainees held in previous conflicts. They fell somewhere between a combatant and a criminal. It would take almost eight years to determine where they fell.
Since the label was affixed, the next question was, how does one become classified as an unlawful combatant or an enemy combatant? For at least two years that question was left unanswered. But critics and detainees began challenging the legality of their detention. Under what authority could the U.S. detain alleged enemy combatants? Also becoming an issue was the indeterminate amount of time someone could be held for intelligence purposes or to reduce their likelihood of returning to the battlefield. Two court cases in mid 2004 challenged this very question. In Hamdi v. Rumsfeld, Esam Hamdi petitioned the Supreme Court alleging that he was being held illegally. Justice O'Connor's remarks in the plurality opinion include the following (2004), "It is a clearly established principle of the law of war that detention may last no longer than active hostilities" (as cited in Janis & Noyes, p. 528). She goes on to reference the third Geneva Convention, Article 118 which calls for a prompt release and repatriation of prisoners of war (Janis & Noyes, 2006). If the U.S. was going to hold persons for whatever reason, there needed to be justification.
In Rasul v. Bush the Supreme Court made a similar distinction in the backround syllabus about the subjects of the case.
They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tri-bunal (sic), much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. (Rasul v. Bush 2004)Here the court indicated the need for a method of determining someone as an enemy combatant. Otherwise, it would appear the U.S. were holding persons without cause. Combatant Status Review Tribunals (CSRT) were the result, and the Department of Defense issued an order establishing such a tribunal.
The order issued to the Secretary of the Navy in July 2004 by Deputy Secretary of Defense, Paul Wolfowitz, officially set the procedures for determining who was or was not an "enemy combatant" (Wolfowitz 2004). What is interesting about the order is that it also grants the detainees (2004) "the right to seek a writ of habeas corpus in the courts of the United States" (p. 1). This opened the door for designated "enemy combatants" to contest their detention. But in 2005, Congress passed the Detainee Treatment Act (DTA) which, inter alia, said quite specifically (2005), "no court, justice, or judge shall have jurisdiction…to hear or consider…an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay" (Title X, DTA 2005). Later in 2006, Congress again confirmed this denial in the Military Commissions Action (MCA). The MCA granted courts the responsibility of reviewing the validity of CSRTs while at the same time denied habeas corpus rights to detainees.
Like the DTA, one could conclude that the act specifically referred to detainees held at Guantanamo expressly as result of terrorism related to the attacks on September 11, 2001. Using language similar to the DTA, the MCA stated (2006), "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination" (MCA, Section 7(a)). In other words, if a detainee is determined to be an enemy combatant, which is to say an unlawful enemy combatant, they would be denied a right to a writ of habeas corpus. This action by Congress may have indicated an intention by the U.S. government to keep prosecution of detainees out of civil courts. But why would they do this?
One reason was this is a new type of war, a new type of enemy. Although the U.S. has dealt with terrorist suspects in the past, such as with the first bombing of the World Trade Centers, the U.S. had not dealt with such an extreme attack. The first World Trade Center attack and the 2000 attack on the USS Cole were small scale examples of individuals conducting criminal attacks. They were similar in scope to the McCann case in the United Kingdom in which the British military thwarted an Irish terrorist attack. Their plot was not successful and the attackers, the terrorists, were killed. But, the ensuing reparations case was tried in an international court. In effect, it was tried as a criminal case. More ironic, however, was the fact that the United Kingdom was ordered to pay reparations to the families of McCann et al because rules of international law were violated (Janis & Noyes, 2006). The U.K. stopped terrorists. But, the U.K. paid on behalf of the terrorists it stopped. It is quite feasible then to consider that trials of al Qaida and Taliban terrorist suspects in federal courts could lead to undesirable outcomes.
So what does all this mean? The U.S. determined its right under international laws to detain individuals. The U.S. defined those individuals as a heretofore obscure title, "enemy combatants". Furthermore, the U.S. established, as a matter of law, limits on Guantanamo detainees' right to an application for a writ of habeas corpus. In essence, it appeared the U.S. was going to keep these alleged terrorists until. Which leads to the next question, until what?
HOW LONG IS TOO LONG?
Guantanamo has come to mean many things. The Center for Strategic & International Studies recently offered a recommendation on closing Guantanamo. In the report Closing Guantanamo, by Sarah Mendleson, she very frankly says (2008), "In the view of many around the world, Guantanamo represents indefinite detention, torture, and abuse" (p. 8). It is the indefinite detention that has plagued our legal systems domestically and internationally with such grave challenges. We must find an answer to the unprecedented question, what do we do with Guantanamo detainees? In a landmark case, Boumediene v. Bush, the Supreme Court pointed out that (2008), "Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention" (p. 69). By 2008 even the court recognized that lengthy detentions were reaching a tipping point. It was becoming necessary to do something with them.
But, one of the problems with this war against terror is that we have no clear way to determine when the war will end, if ever. A real possibility using the existing rules is that we could capture and keep people under the guise of an ongoing armed conflict. And this current conflict seemingly has no end in sight. Justice O'Conner referred to this point in the Hamdi v. Rumsfeld opinion. She said (2004), "If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of 'necessary and appropriate force'" (as cited in Janis & Noyes, p. 530). In other words, as long we maintain armed contact with enemy forces we are authorized to keep "enemy combatants." Regarding Afghanistan, which the U.S. has been engaged in since 2001, the newly re-elected President, Hamid Karzai suggested Afghanistan could regain its own control within the next five years (Siegel, 2009). Simple math says the Afghan war could continue then until 2014. In theory some detainees could face incarceration upwards of 13 years before receiving justice. This may be a strategy in the overall war. Whether or not this is a strategy of the war is not necessarily the point. But, in the eyes of the international community and in the eyes of justice, indefinite detention looks very bad. Eventually we have to wonder, what is the point?
Critics, generally more conservative critics of sustained detention, argue that alleged enemy combatants must be detained for security purposes. Detainees pose a threat to security because they may engage in terrorist acts again. Charles Stimson, of the Heritage Foundation, said in a legal memorandum (2009), "Military detention is not a right-wing proposition; it is a time-honored, legal, proper national security tool during armed conflict" (p. 4). He goes on to point out the necessity of ensuring security through detention. Keeping terrorists off the battlefield protects soldiers engaged in contact. Others suggest detention limits the progress of some jihad or other ideological movement. And, there is the looming issue of intelligence gathering which opens the door to controversial torture – a point only touched on in this analysis. Some contend that certain detainees still hold relevant strategic intelligence value and must be held to gather that information.
But, as Sarah Mendleson points out in the working group report, that latter issue may be irrelevant. Evidently intelligence and military officers assigned to Guantanamo conclude it is. She says (2008), "These officers were unanimous in the view that any value that might have been gleaned was nonexistent six years into detention" (p. 6). Even though the U.S. must look at the detention of enemy combatants through the lens of jurisprudence, a political factor must also be taken into account. The longer we detain alleged terrorists, the more likely we are to tarnish our image as a pillar of justice. It is very possible that Guantanamo itself and the policies it represents are eroding the international community's confidence in the U.S. Mendleson points out that a protracted detention policy (2008), "is not consistent with how our closest allies or advanced democracies have come to respond to terrorist threats" (p.5).
This issue of how lengthy detentions affect our relationship with other nations is significant because it affects our ability to do business and maintain security globally. In a declaration on March 13, 2009 Attorney General Eric Holder, referenced Executive Order 13492 which provided a review was necessary to determine if "continued detention of any individual is lawful and in the national security and foreign policy interests of the United States" (p. 2). This came from a rising debate over how much more harm than good actually comes from indefinite detentions. Critics of detention argue that we inadvertently give cause to more jihadist movements. "Remember the Alamo" was the rallying cry for Texans in their battle for independence in the 1830s. "Remember Guantanamo" may become the rallying cry of jihadists and others looking for excuses to fuel their cause.
WHAT IS A TERRORIST TO DO?
Since 2006 enemy combatants have been expressly denied, by law, any right to habeas corpus in U.S. courts. But, several cases surfaced through the court system challenging detainee's right to trial. In one such case, Boumediene v. Bush, the Supreme Court examined whether detainees were entitled to an application to federal courts under illegal detention justifications. This was a landmark case because the court determined, among other things, that (2008) "MCA §7 thus effects an unconstitutional suspension of the writ" (p. 64). Justice Kennedy referred to the length of time the detainees had been held without any grant to further review of their particular cases. Justice Kennedy very pointedly remarked (2008), "While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing" (p. 66). The court did not go any further than to reiterate the unconstitutional nature of section seven of the MCA, indicating it was a matter for further debate.
The Boumediene case sparked similar court challenges, such as the case involving ethnic Uighurs in Parhat v. Rumsfeld. This was a particularly interesting case as it involved a group of ethnic Uighurs, a Muslim sect originally from China. In their case the defendants contend they were mistakenly associated with Taliban and al Qaeda fighters. This case was tried in the District Court of Appeals as a review of the Parhat et al's "enemy combatant" status. Since the DTA authorized lower courts to review the validity of CSRT "enemy combatant" status determinations, the defendants were able to make a case as having been unjustly confined. The court agreed (Parhat v. Gates, 2008) and directed "the government to release or to transfer the petitioner" (p. 38). Furthermore because the Boumediene case opened the door for grants to habeas corpus, the court also confirmed (2008), "Parhat's right to seek release immediately through a writ of habeas corpus in the district court, pursuant to the Supreme Court's decision in Boumediene" (p38) .
Detainees now had access to the U.S. court system. The question at hand then was, should detainees, "enemy combatants," be tried in civil courts or should they remain in some sort of military tribunal? Before Boumediene, the perceived intent by the U.S. government was that Guantanamo detainees would be brought to justice through the military court system. But should they? For the most part these "enemy combatants" are civilians, albeit hostile civilians. So which venue is appropriate for their trial? Until Boumediene, conventional wisdom suggested Guantanamo detainees would receive military trials either through tribunals or through a form of Courts Martial. On the one hand it would make sense to let the Department of Defense handle the cases since detainees were captured through engagements in armed conflict. On the other hand, doing so creates a new and lasting precedent in dealing with terrorist threats. We effectively categorize them as a quasi nation-state element. This serves little purpose and in fact may do more to embolden and justify the cause of al Qaida specifically. In essence, it gives credibility to al Qaida as a legitimate enemy.
In a Brookings Institute study entitled Designing Detention, Benjamin Wittes and Colleen Peppard point out that the distinction between a military enemy and a criminal individual is important (Wittes & Peppard, 2009). In their study they say:
Labeling terrorists as combatants was intended to give the executive branch broad distinction to detain enemies for the duration of hostilities, but as the courts continue to hear these cases, that label is paradoxically narrowing the range of permissible detentions and perhaps even preventing the incapacitation of people who pose an imperative threat to the security of the United States. (p. 10)
At issue now is, can the U.S. preserve justice and more importantly how can justice best prevail? Is it through military courts or through the civil courts? Attorney General Holder answered that question on November 13, 2009.
THE NEXT STEP
The decision was made. On November 13 of this year Attorney General Eric Holder, announced (2009), "the Department of Justice will pursue prosecution in federal court of the five individuals accused of conspiring to commit the 9/11 attacks" (para. 6). This decision brings what many argue is a new precedent to the terrorism fight – opening the doors of domestic justice to enemy combatants as mere criminals. Now the U.S. is categorizing those involved with the 9/11 attacks, as criminals instead of combatants. This changes the dynamic of law significantly. Initially, rights were removed from the detainees by denying them POW status. Now, detainees could gain rights if they receive civil trials.
This is a major criticism of opponents to civil trials. They claim that trials will provide a venue in civil courts for alleged terrorists to earn rights. Civil trials grant the foreign enemy person significant rights normally entitled to U.S. citizens. In the Parhat v. Gates case, Circuit Judge Garland confirms this point in the opinion of the court. Justice Garland remarks (2008), "The habeas proceeding will have procedures that are more protective of Parhat's rights than those available under the DTA" (p. 32). What is even more enraging to critics is what Justice Garland indicated when he continued (2008), "Most important…the court will have the power to order him released" (p. 32). Some might contend that the irony is almost surreal. Terrorists, either proved or alleged, may find that receiving justice means they are receiving their ultimate freedom.
Was Attorney General Holder's decision the right one? That is what critics now debate. Also, to add just one more twist to legal drama, Attorney General Holder said in his statement that at least five defendants would still be referred to the Department of Defense for trial (Holder 2009). Why? In a way this raises even more questions about properly handling detainees. Some might argue that trying cases in both military and civilian courts does little to resolve the overall complicated matter. Instead it may complicate things even further. What the Justice Department has said in effect is that some defendants will gain rights through federal trial and some will not. Again, why? At this point we just do not know. What we do know is that an end is in sight. But, as that end approaches, will terrorists be brought to justice?
As terrorism suspects go to trial in the U.S. federal courts, one question must linger in the minds of all participants. What if the suspects are acquitted? Are the American people, trustworthy of their justice system, prepared to let go of the past if the names and faces of evildoers are set free? Above all other questions, this may be the most disconcerting because it is a real possibility. We can posit now that there is no way a terror suspect will get away with such heinous crimes. A scenario like that could issue a devastating blow to the war efforts which, among other things, intend to bring foreign threats to justice. Justice may be served, but it may not be the cold dish America intended.
Attorney General Holder assures the American people that those terrorist who committed the acts on 9/11 will be brought to justice (Holder, 2009). But can he say that detainees will receive nothing less than fair punishment? He said "failure is not an option" during his testimony before the Senate Judiciary Committee (Richey, 2009). Also, President Barack Obama has already indicated that justice will be served and justice will be the death penalty. In an interview with NBC's, Chuck Todd, President Obama remarked (2009), "I don't think it will be offensive at all when he's convicted and when the death penalty is applied to him" (Todd, 2009) when referring to Khalid Sheikh Mohammed's civil trial. Did he pre-judge and did Eric Holder pre-judge? That will now be for the courts to decide as they also decide the fate of those who attacked the United States.
IN THE END
The entire matter of holding detainees in this current war has become ugly. Wittes and Peppard made a telling statement regarding the nature of the difficult legal aspects when they said (2009), "There is no clean way to do this as a matter of law" (p. 22). That is one of the reasons why the debate over Guantanamo detainees has been so hotly contested. There is no clear way to legally deal with them. Some of the critics may argue that the U.S. and international legal systems have been turned upside down. This author offers a different view. Rather than being turned upside down, legal history is being made. There are tremendous legal opportunities here. What will come of the ensuing legal battles will be new precedents, procedures and policies regarding the capture and detention of terrorist threats.
One thing is for sure. Time is not on anybody's side. Legal decisions are long overdue. As Wittes and Peppard point out (2009), "The longer the government waits to seek a reasonable legislative regime in which the courts can repose confidence, the worse the deal is likely to get" (p. 22). We cannot put justice off any longer. As the war in Afghanistan wages on, the initial fervor behind the U.S. effort has waned. We need that fervor because it represents support. Without support, we risk decreasing our status as a hegemonic power.
If the United States represents a power in the world that is good, it is in the best interest of the United States to maintain that reputation. We maintain it by being credible. We are credible because of a powerful military. We are credible because of a liberal economy. And we are credible because we maintain a system of justice that is fair. That is why we are able to gather support for causes that are good. The test of this war, however, is the test of our credibility. We must come through it with our support still intact. If we fail against an enemy, that is bad. But if we fail to uphold the institution of justice both domestically and internationally, that is potentially catastrophic. It may even be a more irrecoverable consequence of pursuing terrorists and protecting U.S. citizens. So the answer to the question of what to do with terrorists must be answered correctly and quickly.
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