Detain Game—A Commentary by Prof. Bruce Ackerman

Detain Game
How Congress can make Guantanamo even worse
By Bruce Ackerman

The Supreme Court's Guantanamo decision last month in the landmark case Hamdan v. Rumsfeld has forced Congress to wake from its slumber. But the hearings that were held last week threaten to make a bad situation even worse. Congress has made it appear that the central problem at Guantanamo Bay is the arbitrary legal procedures enshrined in the president's military commissions; the "trials" that would prosecute the detainees for their alleged crimes against the law of war. But only about 10 detainees have actually been charged with such crimes.

The bigger problem—and the problem Congress still seems inclined to ignore—is the shaky justification for holding all the rest, seemingly indefinitely, without due process.

This point will become even clearer now that the administration has formally agreed to be bound by the Geneva Conventions' promise of the basic judicial guarantees "recognized as indispensable by civilized peoples." By suddenly recognizing international law, the Bush administration will only make it easier for thoughtful Republicans in Congress to insist on the homegrown, and far more demanding, standards developed by the Uniform Code of Military Justice. And as the protagonists seriously debate the requirements of due process for our enemies, it will become increasingly tough for them to ignore the elephant roaming the room: The more due process granted these detainees, the harder it will be to convict them. And the harder it is to convict them, the more tempting it will be to detain these suspects indefinitely as enemy combatants.

This, then, is the key problem: not what sorts of trials to hold for enemies accused of violating the laws of war, but how to deal with detainees who are not charged with any crimes at all. And in order to make progress on that issue, Congress must break it down into three parts: the who, the how, and the how long.

The most important, but least discussed, issue, is who qualifies as an enemy combatant. Certainly, the army can legitimately detain combatants it captures on the battlefield. The Supreme Court made that clear two years ago in the Hamdi case arising out of the war in Afghanistan. But the administration wants a much broader hunting license. It insists on the power to sweep up suspects in the metaphorical "war" it is waging on "terrorism."

Terrorism is merely a technique, involving intentional attacks on innocent civilians. But war isn't a technical matter. It is a life-and-death struggle against a particular enemy. We made war against Japan, not on kamikaze attacks. If we allow ourselves to declare war on a mere technique, we open up a dangerous path: authorizing the president to lash out at enemy combatants far removed from any traditional scene of combat.

This has already happened in the case of Jose Padilla, an American citizen, who was picked up in 2002 in civilian clothes, without any weapons, at O'Hare Airport in Chicago. Then-Attorney General John Ashcroft declared that he was an enemy combatant bent on attacking an American city with a dirty bomb, but Padilla was never given a hearing that would have allowed him to contest the evidence against him. Instead, he was held in a military prison for more than three years before he was turned over to civil authorities to face trial on an unrelated criminal offense.

The president didn't send Padilla to Guantanamo. Since he was an American citizen, he was kept in solitary confinement within the United States. But that makes his detention worse, not better. Congress—as an initial matter—must make it clear that only the enemy combatants captured in real wars like those in Afghanistan and Iraq may be legitimately detained, and that this restriction on presidential power applies everywhere detainees are held, both at home and abroad.

The second underdiscussed problem is how long such enemy combatants can be detained. The traditional answer is until the war is over, and the court suggested as much in Hamdan. But in her plurality opinion in Hamdi two years ago, Justice Sandra Day O'Connor warned that this traditional understanding "may unravel" in an "unconventional war" that might not be "won for two generations." She did not try to resolve this crucial matter herself, since the war in Afghanistan was plainly in progress when she wrote her opinion in 2004. But Congress must begin to confront it today. The Guantanamo detainees will soon have been held for as long as the enemy combatants we captured during World War II. Is there no limit to detention when it comes to low-level interventions within failed states?

And finally Congress must address itself to the problem that has surfaced on the periphery of the present hearings: How much process is due to detainees who deny they are even enemy combatants in the first place? This is not the same question as what sorts of trials they will have. This is a matter of whether they are held properly at all. The president resolved this matter initially, and in blatant violation of the Geneva Conventions, by finding that all Guantanamo detainees were properly held, even without the benefit of any individualized hearings. The argument was that anyone who had been detained was rightly detained.

More recently, each detainee has been provided with an annual review—although it's a review that is still sorely deficient in due process. The president's Combatant Status Review Tribunal doesn't allow the detainees' lawyers to participate and refuses to ask the most important question under the Geneva Conventions: whether someone is a POW or not. While the administration continues to refer to all detainees as "killers," a recent review of the records produced by the Review Tribunal suggests that "[o]nly 8 percent of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40 percent have no definitive connection with al Qaeda at all and 18 percent have no definitive affiliation with either al Qaeda or the Taliban."

To his great credit, Sen. Arlen Specter, R-Pa., is trying to call attention to this issue and proposes to beef up due-process standards to include a requirement that the military actually provide to each detainee the reason for his continued incarceration. Although this is a matter of great importance, it should also serve to provoke a conversation on the larger issues raised by the continuing confinement at Guantanamo; a conversation the Congress remains reluctant to undertake.

The Supreme Court's decision in Hamdan has given us a precious opportunity to reflect again, under conditions of relative calm, on a broad range of hasty decisions we made as a nation under crisis conditions after Sept. 11. If we are wise, we will use this moment to start building legal structures that will serve as bulwarks against arbitrary presidential power in the tough times ahead. If Congress resists this invitation and again defines its responsibilities narrowly, it will only make the problem worse. We may end up finally closing Guantanamo, but we won't be escaping the legal problems it raises anytime soon.

Bruce Ackerman, professor of law at Yale, is the author of Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism.