Detention without end?

June 14, 2005|By David Brancaccio

BY MY CALCULATION, the war on terror has just surpassed the length of America's direct involvement in World War II. From the attack on Pearl Harbor to Sept. 2, 1945, the day Gen. Douglas MacArthur accepted the Japanese surrender on Tokyo Bay, was three years, eight months, 26 days. From 9/11 until now is about the same stretch of time.

There are many reasons this is important. A war without foreseeable end has enormous implications for the men and women of the armed forces, for their families and for each taxpayer. It also represents an especially uncomfortable challenge to America's system of laws. My visit this spring to the military prison at Guantanamo Bay, Cuba, made that clear.

The infamous kennels of Camp X-Ray at Guantanamo are now empty, draped in browned weeds woven into the chain link by the hot, Cuban wind. The working parts of the prison are more Spic and Span. The most severe camp I saw consists of corridors of metal cells, each with a sink, a Turkish toilet, a platform for a mattress, a few sundries and a prayer rug.

In the simple cell the military showed me, a Quran was treated carefully, suspended in a pouch fashioned out of a clean surgical mask. As we now know from the military, this kind of respectful treatment of the Muslim holy book was not always the case in this prison.

Respect for the American tradition of due process also has been uneven. I found that on display in another part of Guantanamo prison, Camp Five, which is not a camp but a massive concrete building with air conditioning, a humming security control room and hissing, remotely controlled door locks.

Camp Five looks built to last, suggesting by the very permanence of its architecture that someone is planning for the global war on terror to last longer than it has. The camp is modeled after a state penitentiary in Indiana, but it differs in at least one crucial respect: Prisoners in Indiana are subject to the rights of America's venerated legal system. Prisoners in Guantanamo are subject to - well, no one is quite sure. All would agree that the legal rules that govern the destinies of the people stuck in Guantanamo are new, evolving and untested.

Prisoners of war are released when an armistice is signed, according to the Geneva Conventions. There are no POWs at Guantanamo. U.S. officials prefer the term "enemy combatants," a new kind of prisoner for a new kind of war. If the Geneva Conventions apply - and it is worrisome to many that this sentence has to start with the word "if" - then these enemy combatants can plan on getting out when the long war on terror is over. That is to say, around the 12th of never.

That is, unless military officials decide a detainee has no more intelligence to share and no longer represents a threat to American soldiers or interests. Who decides and how is this decided? The military's new way of answering those questions is a three-officer Administrative Review Board, and it should not be confused with the military tribunals intended to put that small subset of combatants on trial for war crimes, Nuremberg-style.

The military knew I was coming, and officials from the Office for the Administrative Review of the Detention of Enemy Combatants had one case ready for me to see inside a conference room, deep inside maximum-security Camp Five.

Officials emphasized that the proceedings would be what they termed "administrative," not "judicial" - not quite akin to a parole hearing, but a process for reviewing the status of detainees once a year. It looked somewhat judicial, including swearing oaths to tell the whole truth. But all of the officials were anonymous, their nametags obscured with adhesive tape.

I sat 4 feet away from the prisoner, who was in a folding chair, his wrists shackled and his ankles chained to a bolt in the concrete floor. He was a 52-year-old Afghan man, thin in his camp-issue orange garb and flip-flops. He had a leathery face and a scraggly black beard turning white at the sideburns. His manner was intense but almost affable as he spoke through a translator.

The prisoner could hear the unclassified summary of the secret report that guided his case. The officers who would make the official recommendation about whether the man should stay in the camps, should be transferred to a third country or should be released were able to consult the report. The prisoner had limited ways of rebutting them. He could offer his version of events, either verbally or in writing. He could also call another detainee who might also have information to bolster a case for release. I had no way of independently verifying any of the military's assertions.

Among the accusations against the prisoner, there were some doozies, if true. The military said he used to work for Taliban intelligence. According to the unclassified brief, the detainee was caught with incriminating papers, including a faxed copy of a list of questions from an Iranian newspaper for none other than Osama bin Laden.

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