activists, liberal media outlets, and Bush Administration critics
have derisively characterized the U.S. military detention facility
at Guantanamo Bay, Cuba, as the "gulag of our times," a
"legal black hole," and a "stain on our nation's character." One
need not dig too deeply into the facts, however, to discover that
the detainees held at Guantanamo receive the most systematic and
extensive procedural protections afforded to foreign enemy
combatants in the history of armed conflict, including
unprecedented access to legal representation and U.S. courts. In
order to unearth the reality from the layers of hyperbole,
half-truths, and outright lies that have been heaped upon
Guantanamo Bay, this paper corrects a few of the more persistent
misconceptions relating to the situation.
The U.S. must either put Guantanamo Bay detainees on trial or
Certain Members of
Congress and parts of the self-described "international legal and
human rights community" labor to spread the mistaken notion that
the United States has only two viable and legitimate options for
dealing with the detainees held at Guantanamo Bay: (1) charge the
detainees with crimes and then try them or (2) simply release them
from U.S. custody. There is, however, at least one other
option, which just happens to have the most venerable pedigree in
U.S. history, that the Guantanamo critics ignore: hold the
detainees until the end of active hostilities.
As of May,
approximately 380 detainees were being held at Guantanamo Bay. Only
about 60 to 80 of them are expected to stand trial before military
commissions for their individual criminal acts. This list includes
Khalid Sheikh Mohammed, the confessed mastermind of the September
11 attacks, and Ramzi Bin al-Shib, the so-called 20th hijacker. The
remaining detainees are being held not because of any alleged
criminal conduct but because (1) they fought against U.S. and
Coalition forces in Afghanistan and (2) U.S. special military
tribunals have determined that they are too dangerous to be
released back into the world and would likely rejoin the fighting
against U.S. and Coalition forces.
The United States
is engaged in an ongoing armed conflict in Afghanistan and
therefore has no obligation-legal, moral, or otherwise-to release
captured enemy soldiers so that they may return to the battlefield.
Indeed, the Geneva Conventions require that combatants be released
from custody only "after the cessation of active hostilities." The
U.S. Supreme Court recently affirmed the principle that the
detention of enemy combatants is a "fundamental and
accepted…incident of war" and concluded that the President
is therefore authorized to hold detainees for the duration of the
conflict in Afghanistan.
The obvious rationale for the detention of enemy combatants is to
prevent captured belligerents from returning to the battlefield to
take up arms again against Americans and American allies. The
premature release of enemy combatants from Guantanamo Bay would
likely prove deadly to U.S. forces still fighting in Afghanistan:
At least 30 of the approximately 395 detainees who have been
released from Guantanamo Bay returned to Afghanistan to engage in
further hostilities against Coalition forces.
Other than calling for the immediate release of all detainees and
closing Guantanamo, critics provide no solution for how to prevent
these former belligerents from returning to the battlefield and
killing U.S. and Coalition soldiers. The only sensible solution is
the one that the United States and other nations have long
employed: hold detainees until the cessation of conflict.
The Guantanamo Bay detainees received inadequate due process when
they were designated enemy combatants.
In violation of
the Geneva Conventions and the customary laws of war, Taliban and
al-Qaeda fighters in Afghanistan wear no uniforms or insignia.
Unlike the soldiers of every nation that seeks the protections of
the Geneva Conventions and other laws of war, Taliban and al-Qaeda
fighters refuse to carry their arms openly. Such choices
drastically increase the dangers of war to the civilians among whom
Taliban and al-Qaeda forces hide.
These choices also
make it more difficult for U.S. military personnel to determine
whether, upon a combatant's capture, the combatant is in fact a
member of the enemy force. To address the problem, the U.S.
military established a system to screen each detainee to determine
whether he is an enemy combatant. The result is that detainees at
Guantanamo Bay have received more procedural protections ensuring
the fairness of their detention than any foreign enemy combatant in
any armed conflict in the history of warfare.
Under the Geneva
Conventions, enemy combatants who have committed a belligerent act
but whose detainee status is in question are entitled to have their
status determined by a "competent tribunal." In accordance
with that provision of the Geneva Conventions, prior to the
September 11 attacks the U.S. military established Army Regulation
190-8, Section 1-6, setting forth procedures for the operation of
tribunals to make such determinations-that is, whether a combatant
may be held as a prisoner of war. The U.S. Supreme Court
recently cited Army Regulation 190-8 as an example of a procedure
which would satisfy the due process requirements for determining
the status of the Guantanamo Bay detainees. In response, the
Department of Defense established special tribunals modeled on Army
Regulation 190-8-Combatant Status Review Tribunals (CSRTs)-to
determine the status of detainees at Guantanamo Bay.
Army Regulation 190-8, the CSRT hearing provides each detainee with
a hearing before a neutral panel composed of three commissioned
military officers. The tribunals make their decisions on the
detainee's status by majority vote, based on the preponderance of
the evidence. The detainee has the right to attend all open
portions of the CSRT proceedings, the opportunity to call witnesses
on his behalf, the right to cross-examine witnesses called by the
tribunal, and the right to testify on his own behalf.
These procedures go far beyond what most nations provide and what
the Geneva Conventions require.
enemy combatants violate the laws of war by employing deception to
hide or confuse their identities and affiliations, the CSRT
hearings were designed not just to meet but to exceed the due
process protections provided by hearings conducted pursuant to Army
Regulation 190-8. Specifically, Guantanamo Bay detainees are given
the following rights as part of their CSRT hearings:
- A military officer is appointed to serve as the detainee's
personal representative and explains the CSRT process to the
detainee, assists in the collection of relevant information, and
helps prepare for the hearing.
- In advance of the hearing, the detainee is given a summary of
the evidence supporting his designation as an enemy
- A member of the tribunal is required to search government files
for any evidence suggesting the detainee is not an enemy
- The decision of every CSRT hearing is automatically reviewed by
a higher authority in the Department of Defense who is empowered to
order further proceedings.
There would be
little or no doubt whether detainees are members of the Taliban or
al-Qaeda if such forces simply followed the Geneva Conventions and
wore uniforms, displayed insignias, and carried their arms openly.
The resulting irony is that unlawful enemy combatants detained at
Guantanamo Bay have been given heightened due process despite, and
as a direct result of, their repudiation of the laws of war.
The Guantanamo Bay detainees are entitled to habeas corpus
The U.S. Supreme
Court ruled over 50 years ago that non-citizen enemy combatants
imprisoned outside of the United States during wartime do not have
a right to the extraordinary writ of habeas corpus-a legal cause of
action brought by a person who alleges he is unlawfully imprisoned.
That case, Johnson v. Eisentrager, involved 21 German
nationals who had been convicted of espionage by U.S. military
commissions convened in China and then transferred to U.S.
detention facilities in Allied-occupied Germany. Once in Germany,
they petitioned a U.S. federal court to release them under a writ
of habeas corpus, alleging that they had been wrongfully
imprisoned. The Supreme Court ruled that the German prisoners did
not have a right to be released under habeas corpus because they
"at no relevant time were within any territory over which the
United States is sovereign, and the scenes of their offense, their
capture, their trial and their punishment were all beyond the
territorial jurisdiction of any court of the United States."
The large majority
of Guantanamo Bay detainees today are in the same shoes as the
German prisoners were 50 years ago. They are being held outside of
the United States for acts committed in Afghanistan, the
location of most combatants' capture. As such, the detainees have
no right to the extraordinary writ.
In 2004's Rasul
v. Bush, the Supreme Court chose largely to ignore its own
precedent when it extended statutory (not
constitutional) access to habeas corpus review to the detainees at
Guantanamo Bay. Thereafter, Congress rightly "overruled" the
Supreme Court by changing the statutory law to revoke federal court
jurisdiction over habeas corpus actions filed by Guantanamo Bay
detainees. It is that legislation that Guantanamo
Bay critics now seek to undo with yet another round of
Finally, to assert
that the Guantanamo detainees deserve habeas hearings is to assert
that the CSRT hearings that have been provided to each and every
detainee have been fundamentally inadequate. They have not.
The CSRT hearings exceed the requirements for determination of
combatant status under the Geneva Conventions and U.S. military
Recommendations for Congress
not interfere with the U.S. military's policy of detaining alien
enemy combatants at Guantanamo Bay for the duration of the war on
terrorism. These detainees should not be released until the
cessation of hostilities in Afghanistan and elsewhere or until such
time that the detainees are no longer a threat to U.S. and
Coalition forces. Calls by Members of Congress and the
"international legal and human rights community" to release the
approximately 380 detainees remaining in Guantanamo are reckless in
the extreme and not supported by the U.S. Constitution, U.S. laws,
the Geneva Conventions, or customary international law.
decline to take the extraordinary step of providing the writ of
habeas corpus to the unlawful enemy combatants held at Guantanamo
Bay, none of whom are U.S. citizens or legal residents. Even if
granting non-citizens who are unlawful enemy combatants the right
to habeas corpus were the right decision for this war-and it
decidedly is not-it would set a dangerous precedent for America's
ability to fight future wars, including conventional wars in which
enemy combatants are affiliated with nation-states. In any future
conflict, the international community, including the United
Nations, would surely demand that prisoners of war held by U.S.
forces have access to U.S. courts to try their claims that they are
being held unjustly. Further, granting the writ of habeas corpus to
non-citizens who are unlawful enemy combatants is almost certain to
embolden liberal and progressive jurists to "discover" new
constitutional rights for U.S. enemies to access U.S. courts to try
their claims. Finally, extending habeas corpus to Guantanamo Bay
will impede the effectiveness of military operations and place an
unnecessary burden on U.S. military forces in the field.
While U.S. troops
are deployed in the field in Afghanistan and Iraq, Congress should
focus its efforts on strengthening their ability to succeed.
Congress should not hamper our troops' efforts with shortsighted
legislation extending unprecedented rights to foreign terrorists
and other enemy combatants. Rewarding or releasing captured Taliban
and al-Qaeda fighters is not any way for legislators on the home
front to support U.S. troops fighting abroad.
Steven Groves is Bernard
and Barbara Lomas Fellow in the Margaret Thatcher Center for
Freedom, a division of the Kathryn and Shelby Cullom Davis
Institute for International Studies, and Brian W. Walsh is Senior
Legal Research Fellow in the Center for Legal and Judicial Studies,
at The Heritage Foundation.