Last January, when U.S. military forces began shipping hundreds of "unlawful belligerents" from Pakistan and Afghanistan to a makeshift prison at the U.S. base in Guantanamo Bay, Cuba, many Americans seemed to accept the need for such unusual action. Rear Adm. John D. Stufflebeem, deputy director of operations for the Joint Chiefs of Staff, said: "They are bad guys. They are the worst of the worst, and if let out on the street, they will go back to the proclivity of trying to kill Americans and others."
Some legal experts were supportive, too. David B. Rivkin Jr. and Lee A. Casey, lawyers who had served in earlier Republican administrations, wrote last March in the pages of Outlook with their colleague Darin R. Bertram that the United States had legal justification for holding the roughly 625 detainees without giving them prisoner of war status or trials. But they stated that some judicial process eventually would have to be applied: "Otherwise, their continued detention becomes, at some point, penal in nature." Nine months have passed since those words were published..
Two weeks after the first captives arrived in Cuba, Pentagon spokeswoman Victoria Clarke said, "At the end of the day . . . the American people and the people around the world will see that we are . . . adhering to the principles that we care very deeply about." This week, Outlook offers the views of two lawyers hired by the families of some of the detainees.
For nearly a year, my colleagues and I, working with the Center for Constitutional Rights, have represented four men we have never met. They are held in a U.S.-run prison. They have not been charged with any wrongdoing, nor brought before any court.
Casualties of the "war on terrorism," these four men say they had nothing to do with the events of Sept. 11, 2001. According to their families, the four men have never joined any terrorist organization, and are not enemy combatants; the government has presented no evidence to the contrary. Yet they live in solitary confinement and have never spoken with an attorney. They do not know how long they will be imprisoned, nor even where they are being held.
The legal question posed by their case is simple: Does a person jailed by our military during the war on terrorism have a right to tell someone -- someone who can do something about it -- that he has done no wrong and that his jailers have made a mistake? The U.S. Court of Appeals for the D.C. Circuit will decide whether the detainees are entitled to a day in court. This month, the appeals court heard arguments in two cases of prisoners held at Guantanamo Bay naval base in Cuba. My colleagues and I represent two Australians and two British citizens, while another legal team represents 12 Kuwaitis.
Each one has a different account. Mamdouh Habib, an Egyptian-born Australian, traveled to Pakistan in July 2001 to look for work and schools for his children. After Sept. 11, Habib decided he wanted to return home to Australia, but was detained by Pakistani authorities who turned him over to Egyptian authorities who later handed him over to the Americans. "I don't know why we were kidnapped," he later wrote to his wife in Australia. Habib has been in custody since Oct. 2001, and has been at Guantanamo since May. Our other clients have been held at the base since January.
I should note what is not in dispute. Certainly, the military has the right to detain people seized during armed conflict, provided it complies with the Geneva Conventions. It may hold them at Guantanamo Bay. And it may interrogate them to gather battlefield intelligence. This litigation threatens none of those prerogatives.
But what the military may not do, and what it has never previously done during armed conflict in the modern era, is ignore the rule of law by detaining people without giving them any access to the legal process.
In ways both large and small, this case is unusual. Our clients have no idea that litigation on their behalf is underway. After they were brought to Guantanamo, each was allowed to write a short letter to his family, which, like Habib's, was delivered by the International Red Cross. Several family members retained attorneys overseas, who contacted us. Although we represent the prisoners, we are not permitted to speak with them.
The case is unprecedented in another, more fundamental, way. So far as we can tell, it marks the first time the United States has held anyone completely outside the protection of the law. If the government is correct, the more than 600 people imprisoned at Guantanamo are not entitled to any legal protections enforceable in any court in the world. They occupy what a British court recently called "a legal black hole," a status devoid of enforceable rights. And with no rights, they may be held indefinitely -- until the "war on terrorism" is over -- with no legal process contemplated.
The government's position, then, is that these particular detainees are not members of a standing army, and the government may hold them indefinitely as unlawful belligerents, with no proof they have done anything wrong, while providing them no opportunity to show their innocence.
The government, in its brief, relies on a Supreme Court decision involving German soldiers captured in China during the closing weeks of World War II. After Germany surrendered but while Japan fought on, the United States captured 27 Germans in China and charged them with assisting the Japanese army. Because Germany had surrendered, this violated the laws of war. With permission from the Chinese government, the United States then tried the Germans before a military tribunal in Shanghai.
It is hard to see how this earlier ruling advances the government's position. The German prisoners were represented by counsel and given a proper chance to prepare their defense. They had the right to discover and introduce evidence, to call and confront witnesses, and to make opening and closing statements. After a trial that lasted months, six were acquitted and released, while 21 were sentenced to fixed terms in prison. Later they filed a lawsuit in Washington, claiming that their trial was unlawful. In Johnson v. Eisentrager, the Supreme Court disagreed. It held that their trial was fair, and that they received all the process due under the circumstances.
In contrast, the prisoners at Guantanamo have had no such process, even though the administration recently admitted that some of the prisoners are probably innocent. In fact, the military just released four men, including one elderly man whom the New York Times described as "babbling at times like a child," adding that "the partially deaf, shriveled old man was unable to answer simple questions." A second man said he was 90.
It is one thing to say that enemy aliens lawfully tried and convicted in a military court overseas may not seek additional review in a civilian court, as the Supreme Court held in the World War II case, but quite another to apply the same rule to people who have never been charged.
There is a second part to the government's argument. In the earlier case, the Supreme Court reinforced its conclusion with the observation that China was not part of our sovereign territory; if the German inmates had been imprisoned in the United States, more rights might have applied.
Seizing on this, the Bush administration argues that we are not "sovereign" in Guantanamo. Just as our courts had no jurisdiction over events in China, the administration asserts, the courts have none over Guantanamo.
But Guantanamo is not China. It is a fully American enclave, a city where thousands of American soldiers and civilians live under U.S. authority. Nearly half the size of the District of Columbia, it has its own schools, generates its own power, provides its own internal transportation and supplies its own water. No one may enter or leave without approval from the U.S. government.
We have occupied Guantanamo since 1903 under a lease with Cuba. While the lease "recognizes the continuance of the ultimate sovereignty" of Cuba, it grants the United States "complete jurisdiction and control over and within" Guantanamo. Another provision allows us to stay as long as we see fit. We have repeatedly declared our intention to remain indefinitely.
For nearly a century our government has described Guantanamo as "practically a part of the Government of the United States." Solicitor General Theodore B. Olson, who heads the government team in the current litigation, once described Guantanamo as part of the "territorial jurisdiction" of the United States and "under exclusive United States jurisdiction."
The government confirms this in practice: Crimes committed at Guantanamo are prosecuted in a federal court in Virginia, where defendants enjoy the complete panoply of constitutional rights. Despite Cuba's attempts to exercise its "ultimate sovereignty" by insisting we leave Guantanamo, we remain.
We alone exercise power at Guantanamo. We refuse to recognize the authority of any foreign or international court. Earlier this year, the Inter-American Commission on Human Rights of the Organization of American States, of which we are a member, ruled that the prisoners are entitled to a prompt determination of their legal status by a "competent tribunal." The commission explained what is self-evident: Everyone captured during armed hostilities is entitled to the protection of the law and the prisoners cannot be held "entirely at the unfettered discretion of the United States government." Yet we refuse to comply with the commission resolution.
The result is a Catch-22: Because we exercise sole power at Guantanamo, we refuse to recognize the authority of any other court. Yet because Cuba retains "ultimate sovereignty," the government says that none of our courts have jurisdiction, either. We are "sovereign" enough to exclude the prying eyes of any other court, but not sufficiently sovereign to permit scrutiny by an American court.
Formally, the question now before the U.S. appeals court is jurisdictional: Do federal courts have the authority to determine whether this indefinite imprisonment -- and absence of legal process -- is against the law? But the real question is more fundamental: Is the American military subject to the rule of law? We hope that it is.