INDEFINITE DETENTION ON GUANTANAMO

In Part One of a two-part series on the Guantanamo detainees, FindLaw columnist Joanne Mariner discusses the Bush administration's justifications for holding detainees for an indefinite period without bringing criminal charges against them. Part Two will review other countries' experiences with administrative detention, and assess the legality of the practice under international standards. - Ed.

It is still unclear how the United States plans to deal with the 384 detainees brought from Afghanistan to the Guantanamo Bay Naval Base in Cuba, although the available options are fairly easy to enumerate. Some detainees may be released back to their home countries, perhaps for trial there; some may be tried before U.S. military commissions; and some may be criminally prosecuted in U.S. federal courts.

For those detainees against whom there is direct evidence of involvement in war crimes or terrorist acts, prosecution here is the most likely possibility. Clearly, such persons will not be released; the main question is simply whether they will face trial in civilian courts or military commissions.

Yet, besides release or prosecution, an additional option has been suggested and, for several reasons, now seems increasingly likely. That option is administrative detention, also known as preventive detention, or internment. In other words, detention without trial.

To date, none of the Guantanamo detainees has been criminally charged. The question is whether some or all of them will remain in long-term detention without charges being brought. And, of course, the question is also whether this would be a wise, fair or legally justifiable course of action.

Why Administrative Detention?

According to anonymous official sources cited in recent press accounts, investigators are, in many cases, having difficulty obtaining direct proof of the detainees' involvement in terrorism or war crimes. Moreover, documents released this past weekend suggest that at least some of the detainees were innocent aid workers swept up in mass arrests of Arab men in Afghanistan.

Normally, in the absence of particularized evidence implicating individual detainees in criminal activities, such persons would be released. In the present circumstances, however, there is an obvious reluctance to release people perceived as terrorist suspects, even if the suspicions as to their culpability are based primarily on a collective judgment about the detainees as a group, rather than on individualized information.

It is thus unsurprising that Secretary of Defense Donald Rumsfeld has indicated that some of the detainees, even if acquitted in criminal proceedings, may remain in detention "for the duration of the conflict." When asked to specify when, in his view, this would be, he replied, "when we feel that there are not effective global terrorist networks functioning in the world."

Wartime Internment

Secretary Rumsfeld's statements have at least an arguable basis in the laws of war. According to the Geneva Conventions, captured combatants may be detained without charges until the end of active hostilities. The justification for this rule is that a government involved in an armed conflict has an obvious interest in ensuring that enemy soldiers are kept away from combat for the duration of the conflict.

In an ordinary war, it is fairly easy to determine when hostilities have ended. This current conflict, however, as least as framed by the Pentagon, is no ordinary war. There has been enormous debate over when the war began - was it with the attacks on New York and Washington, or with the commencement of the U.S. bombing campaign in Afghanistan? - and there is equal controversy regarding when it can be deemed to have ended.

In other words, at what point must the "war on terrorism" be understood simply as a rhetorical formula, like the "war on drugs" (or, back in the idealistic past, the "war on poverty")? And an even more preliminary question is whether terrorism, even in its most extreme manifestations, should be recognized as a form of war.

Endless War?

As Rumsfeld's comments suggest, the Bush administration's views on this issue are fairly unequivocal. U.S. officials claim that the attacks on the Pentagon and the World Trade Center were acts of war; that the war on terrorism is a real war, not a rhetorical device; and, apparently, that the Guantanamo detainees may be held without trial until the war on terrorism is over.

While the war in Afghanistan is winding down, the battle against terrorism has no foreseeable end. Already, the administration has acknowledged that it may take decades before the United States can claim victory in the war on terrorism. And, when one thinks soberly on the question, even an estimate of decades seems overly optimistic.

Human nature being what it is, terrorism is probably an inevitable characteristic of the modern world. Developments in technology, communications, and the media make terrorism easier and more attractive than ever before. While the United States may succeed in stamping out particular terrorist groups, and preventing particular terrorist acts, it is hard to imagine that the United States will ever succeed in eradicating terrorism per se.

Thus, as Georgetown Law Professor David Cole put it, to say that we will hold the Guantanamo detainees until the war on terrorism is over means that "we're going to keep them for eternity because there are going to be terrorist organizations as long as there is a common cold."

Suspicion, Probability, Collective Punishment and Individual Guilt

So the question is, given what is at stake, is eternity too long? It must be acknowledged that the Bush administration's readiness to resort to extreme measures such as indefinite detention without trial is, to a great extent, a reflection of the seriousness of the terrorist threat. With rational people now discussing the possibility of terrorists detonating nuclear bombs, is it so terrible to keep suspected terrorists locked up?

Judging from dictum contained in a recent opinion, the Supreme Court does not seem to think so. In Zadvydas v. Immigration and Naturalization Service, a decision barring the indefinite detention of deportable aliens, the Court took obvious care to distinguish the situation of alien detainees from that of suspected terrorists.