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The Fate of Guantanamo’s Inmates

Prepared by: Lionel Beehner
Updated: July 16, 2007

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The treatment of terrorist suspects at the U.S. detention center in Guantanamo Bay, Cuba, is at the center of one of Washington’s greatest post-9/11 foreign policy challenges: How to handle potentially dangerous detainees. The issue has enormous import in a number of areas—government checks and balances, the role of international humanitarian law, America’s damaged image in the world—and will likely reenter the public debate after the Supreme Court reversed course (TIME) to hear previous claims from detainees. James Jay Carafano of the Heritage Foundation and Gabor Rona of Human Rights First debate the diplomatic, legal, and political merits of closing the Guantanamo Bay detention center in an Online Debate.

The inmates are pressing for the right of habeas corpus, as NPR reports, to challenge their detention before U.S. federal courts. Last fall Congress voted to strip the detainees of their habeas rights. The High Court’s later decision to reverse itself and review these cases—that is, to decide whether it is constitutional to detain them indefinitely without charge or legal counsel—has some human rights advocates hopeful. But Brookings’ Benjamin Wittes warns that without clearer legal procedures in place, these detainees may just be shifted to some other detention facility overseas with even less scrutiny than Guantanamo (i.e. naval vessels in international waters or CIA-run “black” prisons). Moreover, he writes, “making legal detentions too legally cumbersome creates an incentive not to capture the enemy but to kill him.”

Even if their habeas petitions are heard, these detainees must prove they are not “unlawful enemy combatants”—belligerents with only limited legal protections under international law, such as the right to be detained humanely under Common Article 3 of the Geneva Conventions—before a Combatant Status Review Tribunal, or CSRT. This process has drawn criticism from some legal scholars for its secrecy (last month, a military court* determined that Salim Hamdan, Osama bin Laden’s former driver, was not an unlawful enemy combatant, thus stripping the military commission’s jurisdiction over him). “It’s now clearer than ever that the Pentagon used the CSRTs to paint a veneer of legality (Miami Herald) over a largely predetermined decision,” writes James Ross of Human Rights Watch. Or as this Los Angeles Times editorial puts it: “Important as it is, habeas only gets a prisoner into the courtroom. It doesn’t provide judges with detailed guidance about whether a particular prisoner has received due process.” Human rights groups argue that because detainees cannot see or challenge the evidence against them, the CSRTs are no substitute and have not bearing on the habeus process.

Nor does the court’s decision resolve the unclear future of Guantanamo Bay. A number of lawmakers, keenly aware of the naval base’s negative effects on opinions toward America abroad, are clamoring to have it closed. Even Colin Powell, a member of President Bush’s first-term war cabinet, called for its closure “not tomorrow but this afternoon (WashPost).” Yet some, including Col. Morris Davis of the Defense Department’s Office of Military Commissions, say the facility serves a useful function and that detainees are treated properly. “Critics liken Guantanamo Bay to Soviet gulags, but reality does not match their hyperbole,” writes Col. Davis in the New York Times. Others fret the base’s closure might result in hundreds of terrorist suspects being set free. “The primary purpose of holding enemy combatants during wartime,” writes James Taranto of the Wall Street Journal, “is not punitive but preventive—to keep them off the battlefield.”

* The original version of this story misidentified the court that tried Hamdan in June; it was a military court, not a CSRT. We regret the error.

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