March 14, 2003
A three judge panel of the U.S. Court of Appeals for the D.C. Circuit held this week that no American court has jurisdiction over the government's detention of non-Americans captured and held abroad during a war. The court is right. But the story for detainees at Guantanamo Bay, Cuba, and elsewhere can't end there. While they have no viable legal claim, some may well have compelling moral claims on American values. The Bush administration needs to develop a reasonable process on the detainees' behalf and explain that process publicly.
International law permits captured enemy fighters to be held for the duration of hostilities. But this may be a war without definable end, and some being held in Cuba -- as well as at the Bagram air base in Afghanistan -- may not be dangerous or have useful intelligence. There may have been cases of mistaken identity, for example, and low-level Taliban conscripts who need not be held for long periods. The Bush administration has so far failed to put in place procedures instilling confidence that only real enemy combatants have been detained and that nobody is being held longer than necessary. Defense Department officials have said that each case is reviewed carefully and that people are being released when possible. But the names of the detainees are still secret, and only a handful of the roughly 650 detainees have been let go. Meanwhile, Guantanamo has had a rash of suicide attempts. It is impossible, under these circumstances, to determine whether the military is engaging in a reasonable and expeditious review or warehousing people indefinitely.
Nobody wants the administration to release dangerous enemy fighters. But, given the unique nature of this war, simply holding all enemy combatants until hostilities end is no answer either. Some measure of counterterrorist warfare may be a permanent state of affairs. The detainees need to be identified. Those who have committed war crimes should be tried before military tribunals; if convicted, their sentences would legitimize their long-term detentions. And the administration needs to publicly disclose the standards it is using to evaluate the rest for possible release. Specifically, it needs to create some mechanism in the military by which their claims -- either that they should not have been detained in the first place or that they no longer pose a risk -- can be heard and rigorously evaluated. The Constitution does not give the courts the power to oversee these detentions, but that does not reduce the importance of handling their cases justly.
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