Counsel of the Department of Defense

“The basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans, men, women, and children, is not a lawful combatant. They don’t deserve to be treated as a prisoner of war. They don’t deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process. . . .

[T]hey will have a fair trial, but it’ll be under the procedures of a military tribunal. . . . We think [it] guarantees that we’ll have the kind of treatment of these individuals that we believe they deserve. ” — Vice President Dick Cheney 14 November 20011 Prosecution of the war against terror has resulted in the detention by the United States of at least 650 citizens from more than 40 countries at military detention facilities on the US naval base at Guantanamo Bay, Cuba.

2 Although the Bush Administration has held firm to the position expressed in the above quotation by the Vice President almost four years ago, the legality of this position continues to elicit significant worldwide commentary and, indeed, the interest of the US Supreme Court. 3 While the Administration’s position has a number of prominent defenders,4 much international expert opinion has weighed in on the other side of the debate. Some of this opinion has been particularly critical.

Justice Richard Goldstone,5 for example, the former Chief Prosecutor in the International Criminal Tribunals for Yugoslavia and Rwanda, stated in a BBC interview in late 2003 that “a future American President will have to apologize for Guantanamo. ”6 In the spring and early summer of 2005, a number of US politicians—Republicans as well as Democrats—suggested that perhaps the time had come to close the Guantanamo prison. 54/55 The question of how to deal with the detainees in the ongoing Global War on Terrorism (GWOT) is, however, an extremely difficult issue.

The subject has not only generated worldwide commentary, but rifts within the Bush Administration itself. 7 Following 9/11, the Administration invoked extraordinary wartime powers to establish a new system of military justice that would match a very different type of conflict. As the Administration sought to apply those powers, it became mired in problems that it is still struggling to solve. In this article, the competing positions on the legal status of the detainees are assessed. First, the article outlines why Guantanamo Bay was chosen as a location for detainee operations.

It then outlines the competing positions on the Prisoner of War (POW) status of the detainees and the competing views on the due process protections that should be provided detainees charged with war crimes. The article then discusses the wider effects that the Administration’s policies in Guantanamo Bay are having on the Global War on Terrorism. The article concludes with recommendations for an alternative approach to deal with the detainees. The recommended approach outlined in this article aims to regain the initiative for the Bush Administration.

It seeks to recapture much-needed international legitimacy, thereby creating greater diplomatic space within which opportunities to harness broader international support and involvement in the Global War on Terrorism can be pursued. The United States and its coalition partners remain at war against al Qaeda and its affiliates, both in Afghanistan and in further operations around the world. Since Osama bin Laden declared war on the United States in 1996, al Qaeda and its affiliates have launched repeated attacks that have killed thousands of innocent Americans and hundreds of civilians from other countries.

The Bush Administration states that the law of armed conflict governs what it terms “the war between the US and al Qaeda” and therefore establishes the rules for detention of enemy combatants. 9 The US Congress, however, has not formally declared war. Instead, the President has authorized the detention, treatment, and trial of non-citizens in the Global War on Terrorism under a “Military Order” derived from the constitutional authority vested in his position as the President and Commander in Chief of the armed forces of 55/56 the United States.

In order to protect the nation and its citizens, and for the effective conduct of military operations to prevent further terrorist attacks, the Administration states that it is necessary to detain certain individuals to prevent them from continuing to fight and, subsequently, to try those who violate the laws of war. 11 A leaked classified report prepared by Defense Department lawyers for Secretary Donald Rumsfeld in 2003 appears to substantiate why Guantanamo Bay was preferred by the Administration as the location to detain individuals in the GWOT.

The report cited the long-held view that Guantanamo Bay offers the Administration certain legal “advantages” because its location falls outside the jurisdiction of US courts. 12 These advantages lie principally in the areas of removing detainees’ possible rights to question in US courts the legality of their detention and to facilitate permissive interrogation techniques which would otherwise be constrained by US statutes.

The leaked report was the outcome of a working group of executive branch lawyers appointed by the General Counsel of the Department of Defense to address, inter alia, the legal constraints on the interrogation of persons detained by the United States. Some critics have linked the permissiveness of the legal interpretation for interrogation at Guantanamo, which underpinned Defense Secretary Rumsfeld’s approval of 24 specific interrogation techniques there, including “significantly increasing the fear level in a detainee,” to abuses that unfolded late in 2003 at the Abu Ghraib prison in Iraq.

The Administration has denied such a link even though the Defense Department’s investigation into Abu Ghraib revealed that some of the techniques authorized for “unlawful combatants” in Guantanamo Bay had been used in Iraq. 15 Seymour Hersh’s 2004 book, Chain of Command: The Road from 9/11 to Abu Ghraib, which attributes the Abu Ghraib abuse to the Administration’s interrogation policies in Guantanamo, added fuel to the debate.

Hersh’s theory about Guantanamo and Abu Ghraib resonates with an increasingly critical domestic and international audience, and lends credence to the claims of torture by the International Committee of the Red Cross16 and by four former British detainees who have sued Secretary Rumsfeld and ten others in the military chain of command for mistreatment at Guantanamo. 17 The Administration unsuccessfully argued before the US Supreme Court in June 2004 its position that Guantanamo Bay lies outside the jurisdiction of US courts.

The Supreme Court ruled that prisoners at Guantanamo could challenge their detention by writ of habeas corpus in US federal court. 18 The ruling means that foreign detainees have the right to use a US court to question the legality of their imprisonment, even though they are being held outside the country. This finding could be the basis for future rulings applica- 56/57 ble to other US detention facilities as well. Many critics advocate that Guantanamo is the best-known detention facility, but that there are others operated by the Administration in Afghanistan and elsewhere.