IN MARCH, the Pentagon released for public comment a draft of procedures to periodically review the status of detainees at Guantanamo Bay, Cuba. The proposed rules were a substantial improvement over the existing non-system, but they fell short in key respects. The standard for deciding whether detainees should continue to be held was vague -- an invitation for the process to function as a rubber stamp. The detainees would not have the assistance of lawyers to make their presentations to the review boards that the rules were to establish. The members of the boards would all come from the military; the public would still be in the dark about who was being held and why.
You might expect, given the extraordinary revelations about detainee abuses since the draft rules emerged, that the Pentagon would move to remedy these problems. You might expect, given the opprobrium the scandal has brought on this country, that establishing a fair and open system for reviewing potentially long-term detentions would not be a tough call. Yet this week the Defense Department enacted a review policy substantially unchanged from its draft, complete with all the prior deficiencies.
The policy calls for three-member panels to review each Guantanamo Bay detainee's case at least once a year "insofar as is practicable." The proceedings will not be adversarial, like a trial. Instead, a military officer will present the pros and cons of releasing the inmate, who will also be allowed to address the panel. The panel, in addition, can hear from the detainee's family and government. It will then make a recommendation to a civilian Pentagon official, who will order release or continued confinement. The inmate would have the assistance of a military officer, but not a lawyer, in making his presentation.
The Pentagon argues that the laws of war entitle the military to hold these detainees until the termination of hostilities and that this process is generous compared with the consideration given detainees in previous wars -- which is to say none at all. This is true, but it also misses the point. The war on terrorism is fundamentally different from past conflicts, as the Pentagon itself recognized in promulgating this new system: Mistakes are more likely, the goodwill of other governments and populations is essential, and the public, here and abroad, needs to have confidence that the people America locks up truly need to be detained. A review process that specifies no clear standard, that doesn't take basic steps to ensure that a detainee can make his best case, and that provides no outside review or public accountability simply will not provide this confidence or ensure justice. Particularly after Abu Ghraib, it is essential that the military do better.