Chapter 8: The Detention and Trial of Unlawful
James Jay Carafano, Ph.D.
Chapter 9: The Supreme Court Guantanamo Ruling:
How the Administration Should Respond
James Jay Carafano, Ph.D., Nile Gardiner, Ph.D., and Todd Gaziano
Chapter 10: The U.N.'s Guantanamo Folly: Why the
United Nations Report Is Not Credible
Nile Gardiner, Ph.D., and James Carafano, Ph.D.
Chapter 11: Congress Protects Rights, Preserves
James Jay Carafano, Ph.D.
Chapter 12: International Law and the
Nation-State at the U.N.: A Guide for U.S. Policymakers
Lee A. Casey and David B. Rivkin
Chapter 13: Embrace the Need for Decisive
Chapter 14: The Great EU Inquisition: Europe'
Response to the U.S. Rendition Policy
Nile Gardiner, Ph.D., and James Jay Carafano, Ph.D.
James Jay Carafano, Ph.D.
Today, the United States is engaged in a global armed conflict.
As a result of that conflict, the Department of Defense currently
holds about 350 captured unlawful enemy combatants at military
facilities in Guantanamo Bay, Cuba. The care and treatment of
detainees remains one of the most important aspects of the global
war combating transnational terrorism. This collection summarizes
research by scholars at The Heritage Foundation on this critical
and controversial issue. The findings of this research include the
The U.S. government has fulfilled its obligations under
the Constitution, the Geneva Conventions, and
U.S. law. Regardless of where the detainees are held, the
U.S. government has a dual responsibility to uphold the rule
of law and protect the nation. Currently, the detention facilities
at Guantanamo Bay are fully meeting those responsibilities. Just as
enemies captured in wartime have traditionally been handled,
these detainees are being held for the duration of hostilities or
until the military is satisfied that they pose no further threat.
Detaining these enemy combatants is important to national security
for two significant reasons: They are valuable sources of
intelligence, and they cannot return to the battlefield.
The U.S. military has fulfilled its mission.
The operations at Guantanamo Bay meet the letter of the law and are
performed by the U.S. military in an exemplary manner. A legitimate
tribunal process determines whether detainees are a threat to
the United States. Each year, the tribunals reassess whether
detentions should be continued. These reviews have led to the
release of a number of detainees. Some have returned to their home
countries or have been given asylum in other countries, and some
have returned to the battlefield to wage war again against the U.S.
and its allies or to kill civilians in suicide attacks. Others are
awaiting release while the United States ensures that the countries
receiving them will treat them in a humane manner. Still others
will be tried as war criminals under a military commission
process that is established and authorized by law.
The military detention facilities at Guantanamo Bay meet
the highest international standards. Despite the frequent
claims of prisoner abuse at Guantanamo Bay, there is little
evidence to back up those claims. The Pentagon spends $2.5 million
each year on Korans, prayer rugs, and special meals for Muslim
prisoners. Moreover, there are on average two lawyers for every
detainee at Guantanamo, and detainees have challenged their status
before the U.S. Supreme Court. By any measure, the U.S.
government has extended our deadly enemies unprecedented legal
Despite its admirable record in dealing with the challenges
posed by unlawful combatants, the U.S government has received
unwarranted criticism. Human rights activists, media outlets, and
critics of the Administration have derisively characterized the
U.S. military detention facility at Guantanamo as the "gulag of our
times." Specifically, they argue that the detention
of enemy combatants at Guantanamo Bay violates international law
and that the U.S. is unlawfully denying detainees the right to
Granting unwarranted legal rights to these detainees puts
soldiers and civilians at risk by rewarding treachery with
privilege. The detainees willfully violated the laws of war and are
therefore classified as "unlawful" enemy combatants. Most of
the detainees at Guantanamo were captured while fighting for the
Taliban or al-Qaeda and wore no uniforms or insignia, refused to
carry their arms openly, and-perhaps most important-represented no
government and thus no military hierarchy.
Consequently, the detainees are not entitled to Prisoner of War
(POW) status or the full protection of the Geneva Conventions, let
alone unfettered access to U.S. courts. Summarily granting them
these privileges would cripple the integrity of the laws of
Moreover, even if the detainees were granted POW status, 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.
What is missing from critics' arguments for closing Guantanamo
Bay is a sense of perspective. Any proposal to move detention
operations must articulate how these detention operations can be
performed more efficiently and effectively than they are being
performed now. Arguing that the U.S. should close the facilities
merely to placate criticisms of its detention policies is
insufficient. The government's responsibilities will not change,
and it is therefore unlikely that detention operations will be
conducted in a significantly different manner in a different
location. Merely closing the facilities at Guantanamo Bay is not
likely to placate any of America's critics.
The research presented in The Heritage Foundation's Guantanamo
Bay collection clearly indicates that Congress should not interfere
with the U.S. military's policy of detaining unlawful alien enemy
combatants at Guantanamo Bay. The United States is engaged in an
ongoing armed conflict against al-Qaeda in Afghanistan and
therefore has no obligation-legal, moral, or otherwise-to release
captured enemy soldiers so that they may return to the
Short-sighted legislation extending unprecedented rights to
foreign terrorists and other enemy combatants undermines U.S.
troops deployed in the field in Afghanistan and Iraq. These
detainees should not be released until the cessation of hostilities
in Afghanistan and elsewhere.