Five Years and Counting in Cuba
There's still little clarity on the legal status of Guantánamo–and its prisoners
Fawzi al-Odah was 25 and full of youthful confidence when he sent the first letter to his parents after being detained in Guantánamo Bay. "I will be established as innocent soon, and then I will return back to you," he insisted. But that was 2002, and this month al-Odah will celebrate his 30th birthday in Cuba.
On January 11, the U.S. naval base at Guantánamo Bay will mark five years since it opened its doors to some of the earliest government-designated "enemy combatants" in the war against terrorism. Since then, the facility has evolved from open-air cages into a complex rivaling any maximum-security prison. But despite two trips to the Supreme Court, questions about the rights and status of about 400 men held there are not much closer to being answered than they were when the first detainees arrived. And so the coming months will see renewed challenges to the facility in both the courts and the new Democratic Congress.
History. Many of Guantánamo Bay's legal ambiguities were supposed to have been resolved in September, when the White House and Congress haggled over legislation to address a Supreme Court ruling–a ruling that effectively tossed out the administration's previous plan to try some detainees in special military commissions. The result of that haggling was the Military Commissions Act, which specified the rules for the commissions, denied detainees the habeas corpus right to challenge their detentions in court, and defined acceptable interrogation methods.
President Bush signed the bill in October, and the administration hopes the legislation provides a constitutional framework for holding war crimes trials for the worst detainees–including 14 "high value" detainees whom Bush transferred to Guantánamo Bay from previously secret CIA prisons. If convicted, those detainees could be held even after the war on terrorism was thought to have ended. The Pentagon is seeking congressional funds for a courtroom compound at Guantánamo, where the trials would take place.
But the government acknowledges that only about a fifth of the detainees at Guantánamo will face a military commission. Some will be released–hundreds already have been–as the government accelerates efforts to pare down the population to the most serious threats. But those decisions are made by the military, and the administration contends that anyone deemed an enemy combatant can be held until hostilities end, with no access to the courts to challenge their detention.
Critics say the framework is rife with problems. A central irony: Because the most dangerous detainees will go before military commissions, they will have more access to the legal system than those whose detentions are more dubious.
Things could change with a new Democratic Congress, especially through an effort in the Senate by incoming Judiciary Committee Chairman Patrick Leahy to restore habeas corpus rights to detainees. When GOP Sen. Arlen Specter offered a similar amendment to the Military Commissions Act last year, it fell just three votes short of adoption. A batch of new Democrats would seemingly give the bill strong odds of passing, but Congress might have a hard time mustering the votes to overcome a possible presidential veto.
Additionally, the courts, which have frequently shown unease with the Bush administration's broad claim for authority over detainees, clearly aren't done weighing in. A United States District Court ruled last month that the Military Commissions Act did indeed strip detainees of habeas corpus rights. But lawyers for the detainees contend their clients have a constitutional right to habeas corpus that cannot be eliminated by statute. That claim will be evaluated by the Ninth Circuit Court of Appeals, whose decision has been pending for more than a year as the court adjusts to the changing laws. Whatever the decision, all sides say the issue is bound for the Supreme Court.
Limbo. The wait has been galling to Fawzi al-Odah's father, Khalid, a former Kuwaiti Air Force colonel who claims his son was only doing charity work in Pakistan when he was seized. "We understand, after 9/11, the swift reaction of the administration was acceptable for a certain time but not for five years," he says. Fawzi is an unlikely candidate for a military commission, but there is also no indication of when, if ever, he could be released.
For his part, President Bush has publicly expressed a desire eventually to mothball the Guantánamo facility, which has damaged America's human rights reputation abroad and complicated relations with allies. But emptying Guantánamo Bay is not a simple matter, since there are concerns that some countries might torture returned detainees or let go those the United States still sees as threats. Other nations have simply refused to take their citizens back. "A number of these people may be in limbo," says John Radsan, a former assistant general counsel at the CIA and the director of the National Security Forum at the William Mitchell College of Law.
Activity at the base remains brisk. Last month, the first detainees moved into a new $37 million, maximum-security building, called Camp 6. And officials hope the proposed courtroom complex, which could cost up to $125 million, will be ready to hold multiple trials as early as July. According to the Pentagon's instructions for submitting a bid for the project, the courtroom buildings must be designed to last at least 30 years.
"If anything, it doesn't look like it's closing down over there," says Oregon public defender Patrick Ehlers, whose office represents several detainees. "It looks like they're digging in."
This story appears in the January 8, 2007 print edition of U.S. News & World Report.