America's Gulag Problem

Aziz Huq

December 15, 2005

Aziz Huq heads the Liberty and National Security Project of the Brennan Center for Justice at New York University School of Law. 

Everybody but Dick Cheney knows it:  America has a Guantánamo problem.  While Vice President Dick Cheney continues to insist that Guantánamo’s detainees are “the worst of a very bad lot,” the rest of the world sees the Cuban prison as a symbol of hubris and a rallying cry for Al Qaeda. Calling the camp “an anomaly that has to be dealt with,” even staunch administration ally Tony Blair has joined the worldwide chorus pressing the Bush administration to solve Guantánamo.

But Congress is about to pass a bill that cuts off the only real route out of the Guantánamo mess:  A path involving the meaningful review of the factual basis for detention decisions in an independent federal court. An amendment to the Defense Authorization bill, first introduced by Sen. Lindsey Graham, now threatens to constrain tightly federal courts’ historic habeas corpus jurisdiction on behalf of prisoners detained at Guantánamo.  And the administration is adding language that would not only give those who commit abuse immunity in court, but would also allow detainees to be locked up based on evidence extracted by torture—a first ever in American law.

Justifying his proposal, Sen. Graham has argued that previous wartime prisoners did not have the right to challenge their detention. But unlike previous POW detention schemes, the Guantánamo regime is based on seriously flawed legal theories. The administration’s legal mistakes led it to detain many people, including children and innocents, who should not be held. It is these legal mistakes—which are unique in American wartime conduct —that justify a solution of federal court review. 

Building the Guantánamo prison, the Bush administration followed a trail of error led on by aggressive government lawyers. Just as Kenneth Lay and his colleagues at Enron took a “forward leaning” approach to the regulation of securities and derivatives, so the Bush administration’s lawyers pushed beyond a feasible interpretation of the law of war to achieve their policy goals. Just as in the Enron scandal, the resulting house of cards cannot take any weight.

The lawyers’ first mistake was to reason that the 1949 Geneva Conventions, which provide common rules for the conduct of war, did not apply to Afghanistan. They deduced that there was no need to hold “status hearings” on the Afghan battlefield, as Geneva requires, to sort combatants from civilians. Of course, not everyone swept up the U.S.-led coalition was a combatant:  Not only were there civilians on the battlefield who were swept up, but the American policy of offering a $5,000 bounty for Taliban and Al Qaeda scalps scooped up many innocents into U.S. custody.  As The New York Times has confirmed, for many “battlefield” captures, American forces did not have enough information to fill up even a one-page form when they arrived in Guantánamo—let alone enough justification to hold them indefinitely as “enemy combatants.” 

The lawyers' second mistake was to extend the battlefield metaphor beyond Afghanistan: Guantánamo detainees have been picked up from as far afield as Bosnia and Zambia.  We can safely presume a person captured on an actual battlefield carrying a weapon to be affiliated with the enemy.  The same cannot be said of people plucked from the streets of Sarajevo or Karachi.  Flawed legal advice again led to innocents being swept up from places far from any battlefield.

The lawyers’ third mistake flowed from sweeping up so many innocents. Interrogators at Guantánamo unsurprisingly found their captives sparse sources of information. Frustrated, they sought and won permission in late 2002 to apply harsher methods of interrogation. A failure to sift combatants from innocents hence led directly to the use of illegal coercion and torture, again in violation of Geneva. Once introduced at Guantánamo, coercion and torture quickly spread to Iraq, including the Abu Ghraib prison. 

The Guantánamo problem is the sum of these errors. Imagine if the United States had strictly observed the Geneva Conventions in the Afghan conflict, capturing only Taliban and Al Qaeda fighters, providing status hearings and allowing the International Red Cross unlimited access to detention facilities.  It’s hard to believe international opprobrium would be great. The administration’s distrust and disregard of law led it along an unwise path, leaving America to be seen as a human rights pariah. 

Solving the problem means fixing these legal mistakes, and restoring the rights and processes that should have been a predicate to any detention. The best way to address deviations from the law is through the legal process:  America has a highly regarded system of federal courts, admired around the world for their independence and integrity, which can accommodate hearings for all the detainees without breaking a sweat. These courts are already examining the Guantánamo detainees’ predicament. They are a ready-made solution to the problem of incorrect incarceration and improper treatment: Only the courts have the credibility to apply careful scrutiny and determine which detainees are.

Sen. Graham’s bill would curtail detainees’ access to American courts.  It would consign many to a black hole, based on evidence gained by torture, perhaps conducted in other countries and allow no meaningful review. His provisions, which contradict the traditional access to courts that prisoners in the American Civil War and World War II had, would entrench the Guantánamo problem. The camp would fester, and continue to attract recruits to Al Qaeda.  Only through a transparent, and transparently fair, legal process can the harms caused by Guantánamo be limited.  

The detentions at Guantánamo have strayed far from the rule of law. Only by returning to the rule of law—a path that leads through the domestic American courts—can the administration remedy the harm already done to Western efforts to combat Al Qaeda and its allies.