This March, after five years of fighting like mad to close Guantanamo, Barbara Olshansky got a glimpse of a world without the island prison, and it frightened her.
The veteran civil-rights lawyer was on her way to Ghana to guide a student group from Stanford Law School, where she had just taken a job creating an international human-rights clinic. In the pretrip daze of packing and of gathering visas and immunizations, she didn't look at her itinerary until she was on the tarmac. When she read it, she swore. She had purchased her ticket late, and to get a reasonable airfare she had to be routed from New York's JFK airport through Senegal, South Africa, Ethiopia, Nigeria, and Togo -- five countries -- before she would reach her destination of Accra, Ghana.
After the third leg of her trip from hell, in Ethiopia, she fell to talking with a fellow passenger and missed her plane. The next flight was two days away. She got a temporary transit visa, booked a hotel room, and explored the streets of Addis Ababa as she waited, talking, as she tends to do, with anyone and everyone. The Ethiopians were pleasant. "What do you do?" they asked. She said she was a lawyer who sued President Bush over the prisoners the U.S. took in the war on terrorism.
That was true enough, although it wasn't the whole truth. Olshansky isn't just another one of the admired -- or reviled, depending on your view -- defense lawyers working on behalf of detainees at Guantanamo Bay. As the deputy legal director for the Center for Constitutional Rights, a left-leaning New York City-based nonprofit group where she worked for more than a decade, she was the original instigator. In 2002, Olshansky filed a lawsuit on behalf of a British detainee, Shafiq Rasul, that eventually led to the Supreme Court's 2004 decision granting Guantanamo prisoners the constitutional right to habeas corpus that all Americans have -- that is, the right to challenge the legality of their detention in federal court. After Rasul v. Bush, she directed an army of volunteer lawyers from across America who filed habeas petitions, or requests for judges to review the imprisonment of individual detainees.
By the spring of this year, however, as the lawyers prepared to return to the Supreme Court to argue, again, for habeas rights -- after Congress had taken them away in last fall's Military Commissions Act -- Olshansky was tired. Five years of working nearly every daylight hour and quite a few nighttime ones is wearying, and she felt like she wasn't getting anywhere. Guantanamo was still open; the prisoners weren't leaving; and every victory in the courts was followed by a loss in Congress. She was ready for a change, to work on something with at least a possibility of concrete results. That is why Olshansky took the job with Stanford, and that is how she found herself suddenly following a stranger to the central police station and jail in Addis Ababa.
"You'll be interested," the stranger said earnestly, "because some of your fellow countrymen are here."
"What?" Olshansky said.
She wasn't allowed into the jail, but a friendly guard told her that the Americans were there to conduct interrogations and oversee some detentions.
"Of whom?" she asked.
"People from Somalia," he said.
The story that Olshansky had stumbled upon broke internationally a few days later when Human Rights Watch accused the Somalian, Kenyan, Ethiopian, and American governments of cooperating on a new program of secret detention. The prisoners in Addis Ababa were indeed from Somalia, which Ethiopia invaded last December, with a wink and a nod from Washington. Ethiopian troops tossed Somalia's de facto government, the Union of Islamic Courts, out of Mogadishu. Then, with air strikes and intelligence support from the United States, the Ethiopians forced the retreating Islamists, some of whom had ties to Al Qaeda, across Somalia's southern border, into Kenya, where the U.S. had rallied the Kenyan army to set a trap for the escapees.
The prisoners were briefly held in Kenya before, according to flight manifestos obtained by African human-rights groups, being flown back to Somalia and then to Ethiopia, where they were held incommunicado. American agents, FBI at least, perhaps others, were present in Kenya and Ethiopia, questioning people. Released detainees say that the Americans fingerprinted them and took DNA swabs.
"Kenya has secretly expelled people, the Ethiopians have caused dozens to 'disappear,' and U.S. security agents have routinely interrogated people held incommunicado," Human Rights Watch said.
Over the next few months, the detainees from East Africa fell into a patchwork of prisons. One suspected fighter, a Somalian, was taken to Guantanamo Bay and classified as an enemy combatant. Another, an American, was taken to Texas to stand trial as a criminal; he pleaded guilty to receiving training from a terrorist organization and in July was sentenced to 10 years in prison. A captured Kenyan was taken to an undisclosed U.S. military base and then to Guantanamo; another American was sent home, free. European governments secured the release of most of their citizens caught in the dragnet, but 76 other people remain incommunicado in Ethiopian prisons, according to Kenyan and Somalian human-rights groups. Some of those detained are Ethiopian separatists, who have long threatened Addis Ababa. Some are Somalians. Where the rest are from, and how long they will remain in custody, is unknown.
"It already is the day after Guantanamo," said Olshansky, noting that just 18 detainees have been sent to the camp in Cuba since the 2004 Rasul decision. "We haven't gotten everyone out, obviously, but they're just putting people in other prisons."
Guantanamo Bay opened for business on January 11, 2002, when 20 prisoners, dressed in orange jumpsuits, disembarked from a U.S. military plane. Since then, some 780 prisoners have passed through its gates, 360 of whom remain. And if those prisoners are tired of their island home, well, so is most everyone else. President Bush has said he would like to close Guantanamo; so, too, have Defense Secretary Robert Gates, Secretary of State Condoleezza Rice, Attorney General Alberto Gonzales, and former Secretary of State Colin Powell. Human- rights groups hate the place; so does the United Nations, and, truth be told, most of the world.
But picturing what happens after Guantanamo isn't a straightforward exercise. Vice President Cheney, interviewed on July 31 on CNN, said he would prefer not to close the prison: "If you closed Guantanamo, you would have to find someplace else to put these folks." Consider, for example, its new inhabitants from East Africa. One is suspected of being involved in the 2002 hotel bombing in Kenya; the other is said to have been a courier between Qaeda elements in Pakistan and Islamists in Somalia. Both are said to be involved in the armed conflict between the United States and Al Qaeda; both are said to possess valuable information. It is not known if sufficient evidence, or legal jurisdiction, exists to bring criminal charges against either.
If Cuba weren't an option, where would they have gone? To Ethiopia, with others from Somalia, where U.S. agents could interrogate them without actually taking custody? To an American-run prison in Afghanistan? Into the hands of the CIA and its undisclosed locations? To a facility within the United States, either a federal prison, alongside the American in Texas who was charged, or perhaps a military brig? If brought to the United States, what would the courts make of these prisoners who haven't been charged with any crime and yet aren't quite prisoners of war, either? At least one of them, the Kenyan, was captured at a currency exchange office, far from any battlefield; is he an enemy combatant?
These are the questions facing the Bush administration, where an internal debate is raging over whether to close Guantanamo and what kind of legislation to seek from Congress if the prison is to be closed. When Attorney General Gonzales was asked about the issue at a July 24 Judiciary Committee hearing, he noted that bringing detainees into the United States raises some "serious legal issues."
In some cases, the administration fears that the evidence against detainees cannot be used in court, either because doing so might disclose important classified information, despite safeguards already in the law for presenting secret data, or because the way the evidence was gathered might make it inadmissible. The administration is also concerned that the legal justification for holding enemy combatants, particularly those who were not caught in battle, is still under challenge in the courts. In other cases, administration officials worry that the United States may not be able to send some detainees back home because of its obligations under the Convention Against Torture, which prohibits returning people to countries where they are likely to be tortured. If a detainee is cleared for release but cannot be sent home, he may be able to petition for asylum in the United States. Or a judge might order his release under a Supreme Court precedent that says that aliens who are subject to deportation but who cannot be deported may not languish in detention for more than six months.
"I support closing Guantanamo," Gonzales said, "but I think we need to do it with our eyes wide open. I think we will probably come to Congress and ask for legislation in order to ensure that we can protect this country."
Principle Over Place
Guantanamo, it turns out, doesn't really matter. It's the idea of Guantanamo that counts, the notion of a place where indistinct rules govern ill-defined prisoners from an indefinite war on terrorism. Take that place away, force its inhabitants, present and future, into the bright light of clear rules and laws, and suddenly some very basic questions need answers. Should the United States, at the end of the day, plan to hold forever prisoners who will never face trials? If so, what procedures should govern the process? If not, what should be done with the ones who might be dangerous?
Benjamin Wittes, a fellow and the research director in public law at the Brookings Institution, says, "The problem is not an optical problem. It's not a public diplomacy problem. The problem is that we don't have a legal regime. Building a legal regime is a very separate question from whether you choose to do it in Guantanamo Bay or somewhere else."
In the absence of an established set of laws, the courts, Congress, and the Bush administration have produced a strange, muddled hybrid of the laws of war and the laws of peace over the past five years, with a result that pleases nobody. Lawyers for the detainees complain that the system is stacked against them. Their clients, they say, are being held for things that are not crimes under domestic or wartime laws; they cannot rebut evidence they are not told of; they have, after half a decade, still not gotten a substantive review of the legality of detention before an independent judge.
The administration, meanwhile, complains of cadres of lawyers flying down to Guantanamo, and about civilians who don't understand that enemy combatants are not criminals.
Both sides have a point. Under U.S. criminal law, foreigners suspected of terrorist connections may be held for only seven days before facing charges, and they have all of the constitutional rights attendant to a trial. (A provision of the 2001 USA PATRIOT Act theoretically allows the attorney general to detain any such foreigner indefinitely as a danger to national security instead of bringing him to trial, but even the administration, with its voracious appetite for executive power, has declined to test that authority in court.)
Under the laws of war, on the other hand, combatants may be detained until the cessation of hostilities. Imprisonment during wartime is neither a punishment nor a sentence: It simply keeps hostiles out of battle. Make detention too onerous for the military, and soldiers may just kill the enemy.
But this strange conflict doesn't fit neatly into either set of laws. Fights against terrorists are not limited to the battlefield; suspected combatants may be warriors, shepherds, or innocents accidentally swept up in dragnets. Criminal law is based on a presumption of innocence; the laws of war are not.
"You are dealing with a situation unlike one we've ever dealt with before, and it follows that there are holes in the law," Wittes said. "Qaeda members are not combatants, and they are not civilians. We're almost six years out from 9/11: Let's be grown-ups now and acknowledge that all of the metaphors are right to a point, and wrong beyond that."
Building a new legal regime for detainees is no simple task, as Senate Armed Services Committee Chairman Carl Levin, D-Mich., discovered this summer. In the 2008 Defense authorization bill -- still pending -- he took a small step in that direction, inserting a provision to provide some substantive rights to detainees.
Under Levin's proposal, the term "unlawful enemy combatant" would describe only persons who engaged in, or purposefully and materially supported, hostilities against the United States, or were knowing and active participants in an organization that was involved in such hostilities. That's a far narrower definition than the current one, which sweeps in anybody "associated" with such organizations. In Levin's proposal, Combatant Status Review Tribunals, which determine whether a prisoner is indeed an unlawful enemy combatant, would give the detainees the right to an attorney, the right to produce evidence and respond to the evidence against them, and the right to cross-examine witnesses. Classified evidence may be restricted to a detainee's attorney's eyes, but only if an unclassified summary of the evidence is presented to the detainee in such detail that he may actually respond to it. Most evidence derived from coercion would be banned, and a military judge would preside over the entire affair.
In short, the decision to detain somebody would look more like what occurs in a criminal trial, but with a lower standard of proof -- a "preponderance of the evidence," instead of criminal law's "guilt beyond a reasonable doubt."
The White House threatened to veto the bill, saying that Levin's provision would interfere with the "effective conduct of the war on terror" and with the president's constitutional authority as the commander-in-chief.
Human-rights groups, on the other hand, yawned at Levin's proposal. The groups are focused first on the restoration of habeas corpus, something that Levin also supports, and they worry that adding substantive protections to the tribunals would sap the strength of their arguments for habeas. Besides, it's hard to imagine civil-rights advocates cheering for something less than constitutional rights, even for suspected terrorists.
In late June, Levin met with 80 or so Michigan constituents who, in coordination with the American Civil Liberties Union, had traveled to Washington by bus to lobby for habeas corpus rights for detainees. With minimal preliminaries, he launched into an impassioned plea for his admittedly technical bill, trying to convince his constituents that more was at stake than habeas corpus alone.
"Congress passed a bill on detainee treatment last year which was a mistake, something I voted against," Levin said. "It allowed a detainee to be an enemy combatant without access to any of the information which the government was relying on to make that determination. So somebody could be there for three years, four years, or for life, without access to a judge, based on secret evidence." Seeing blank stares, he continued, earnestly nodding his head: "And if there was evidence, it could be based on hearsay, even though other information was available. It's not just habeas corpus, which is important -- these are two different issues, but they're easily confused."
Still no response. Some of the audience sported stickers of a sad little green man, whom the ACLU had dubbed "Mr. Habeas Corpus" under a national campaign asking people if they had seen him. Levin's constituents were there to lobby for a constitutional right, not to cheer the notion of a congressionally approved system of preventative detention. Levin finally played to his audience. "We've had discussions with the civil-liberties community on how to restore habeas corpus," he ended awkwardly.
A man raised his hand. "I'm a middle-school teacher who can no longer say the Bill of Rights is sacrosanct," he said. "What would you say in my place?" Levin abandoned his pitch for the bill and gave the group the pep talk it had traveled overnight to hear. "The only answer is, you fight back. You can stand in front of your class and say, get involved, fight back," he replied.
A National Security Court
Restoring habeas corpus to Guantanamo detainees has the broadest support in Congress. Democratic aides say they believe they have enough votes to pass it in both chambers, although not necessarily by the two-thirds majorities needed to overcome a presidential veto. And even if Congress doesn't restore habeas, the Supreme Court still might. After initially declining to hear the detainees case, the Court took the highly unusual step of reversing itself in late June; it agreed to hear their petition after a military officer who had worked on the Combatant Status Review Tribunals filed an affidavit alleging that the process was biased and unjust.
But habeas corpus, by itself, isn't a legal regime. It's a bare-bones procedural right, etched in centuries-old common law. Filing a habeas petition means asking a judge to review the facts and legality of detention, to determine if a person's imprisonment is in accordance with the law. It doesn't say anything about which law should apply.
Attorneys for many of the detainees say that if a judge were to review the facts of their clients' cases, their clients would no longer be in detention; lawyers for the government, while insisting that the detainees have no such right to judicial review, say that even if the facts were reviewed, a court would find that the government was holding detainees legally. The two sides are clashing over the facts, to be sure; but at a more fundamental level, they're disagreeing over the basic question of whom the government can detain.
Georgetown University law professor Neal Katyal is a staunch believer in habeas corpus. As a civilian attorney for Salim Hamdan, a Yemeni thought to be Osama bin Laden's bodyguard and driver and the first Guantanamo detainee slated to stand trial before President Bush's military commissions, Katyal took Hamdan's habeas petition to the Supreme Court, which last summer accepted his argument that the commission proceedings were illegal and unconstitutional.
But Katyal was also a national security legal adviser in the Clinton Justice Department, where he had attempted to prepare a war-crimes case against an overseas alien ("someone whose name you've heard, who you think is an awful person" is all he will say in the way of identification) but had to abandon the effort because criminal law got in his way. The experience left him with the belief that another form of court might be needed, a national security court, which would adhere to the Constitution but not necessarily to criminal law. At his first meeting with Hamdan, Katyal told his client that he had called for a national security court, just so the client would know where he stood. And on July 11, Katyal and Jack Goldsmith, a Harvard law professor and former assistant attorney general under Bush, published an op-ed in The New York Times calling on Congress to establish a "comprehensive system of preventative detention that is overseen by a national security court composed of federal judges with life tenure."
The court, they wrote, would operate with a congressionally approved definition of the enemy. It would handle classified evidence in a "sensible" way. It would treat citizens and noncitizens with the same constitutional rules, although it would not dispense criminal justice and so it would not accord full criminal rights. It would make sure there was a continuing rationale to detain people years after their initial cases were heard.
Katyal and Goldsmith weren't the first to call for a national security court, but they were the first to do so in The Times, thereby sparking a much broader debate. Some human-rights advocates quickly criticized the proposal, noting that the two had neither defined whom the court could hold, nor explained why the federal criminal courts -- which have, after all, handled several terrorism cases, including some from abroad -- are insufficient. Others began to hone in on the details: What rules, if not criminal, should apply? Whom should the court handle? How long should preventative, often called administrative, detention be allowed -- one year, two years, five years, indefinitely?
"Jack and I have one proposal," Katyal said. "We don't pretend to think it's the only proposal, or even the ideal proposal. But we're a year and a half out from a new administration, and we think it's really important that we start thinking seriously about this."
"Administrative detention gets very easily out of control, and there are a lot of reasons not to do this," said Elisa Massimino, the Washington director for Human Rights First. But, she said, carefully parsing her words, "international human-rights law contemplates administrative detention as not inconsistent with fundamental human rights when you have a situation of national emergency that threatens the life of the nation."
In other words, administrative detention is legal under some circumstances. Other democracies allow limited periods of administrative detention, usually ranging from three to 28 days, before a terrorist suspect must be brought before a judge and allowed to communicate with a lawyer. Much of Europe uses a civil-law system, as opposed to the common-law system that we inherited from England; in those countries, people can be held in investigative detention for years while a case is built against them. At least three countries -- Canada, the United Kingdom, and Israel -- have some form of indefinite detention or, in the U.K., indefinite police supervision, with a judge's approval. (See sidebar, p. 24.) None, however, does what the Bush administration currently claims the power to do: detain prisoners indefinitely without a full judicial review. The administration says that, according to the terms of the Military Commissions Act, detainees can ask judges to review only the procedures by which they were detained, not the full factual basis for their detention. (On July 20, however, the U.S. Court of Appeals for the District of Columbia Circuit rejected the government's arguments, indicating that it would look at all of the evidence both for and against an individual's detention.)
As Massimino sees it, the question about what to do after Guantanamo can be framed in two ways. In one frame, that contemplated by Katyal and Goldsmith and favored by the Bush administration, the country needs to decide what laws to change in order to indefinitely detain some group of people whom it never wants to formally charge with a crime.
In the other frame, the puzzle starts at the opposite end. If this conflict will continue for the rest of our lives, as it seems likely to do, how do we want to fight it? What should the long term look like? Is the conflict more a military battle, subject to the laws of war, or can much of the fight be conducted through the criminal-justice system, using basic criminal law to capture, try, and convict the worst actors? This debate began in the 1990s, and the answers remain elusive.
And even if you have answers, how does the country get to them?
In December, the Army updated its counterinsurgency manual for the first time since Vietnam. Gen. David Petraeus, who now leads the battle in Iraq, co-authored the manual with Marine Lt. Gen. James Amos. The generals were drawing on their experiences in Iraq, Haiti, and the Balkans. But their counterinsurgency vision looks a lot like counter-terrorism in the long run. They're both battles for hearts and minds, and the spoils go to those who present the most compelling view of the world.
"When insurgents are seen as criminals, they lose public support," Petraeus and Amos wrote. Illegitimate actions, including "unlawful detention, torture, and punishment without trial," are "self-defeating, even against insurgents who conceal themselves amid noncombatants and flout the law." If their words were applied to Guantanamo, it would not be a ringing endorsement.
"If you read that manual, and you look at what we've been doing," Massimino said, pausing, "there should be a pullout box: 'This is the way you don't do it.' "
Legally, and Quietly, Put Away
If Massimino had it to do over again, she would start with the criminal-justice system. It's the most legitimate, time-honored tool in the arsenal, and it works. In the past two weeks alone, two Americans, the man who fled Somalia and was captured in Kenya and a former D.C. cabdriver who went to Pakistan, were sentenced for receiving training from a terrorist organization or providing material support to terrorists. Similarly, the 1993 World Trade Center bombers were convicted in federal court; so, too, were Richard Reid, the shoe bomber, and Zacarias Moussaoui, who conspired in the 9/11 attacks.
These prosecutions have come at a price. Moussaoui turned his trial into a circus; a list of Qaeda suspects made its way from the World Trade Center trial to Osama bin Laden's former house in Sudan.
On the other hand, none of the convicted has become a martyr. Nobody agitates over the imprisonments of Moussaoui, Reid, or the men behind the 1993 bombings, or the Americans convicted of attending training camps abroad or conspiring at home. All are viewed as fairly tried, and safely behind bars.
"We've never had hearings on the suitability of the criminal-justice system to try high-value detainees," Massimino said. "We've never had the hearing about the barriers to prosecution, or the costs of doing so. Are there provisions of the rules of evidence that are too restrictive? Do laws have to change? Do we need to sacrifice some intelligence? We need to have that discussion."
It might be, at the end of the day, that the criminal-justice system cannot adapt, that some people cannot be charged. But that, too, has its costs. Guantanamo is reviled the world over, and, increasingly, so is the country that built it.
In January 2003, Reid the failed shoe bomber was sentenced to life in prison. He made no apologies for his actions, declaring himself at war with America. His judge, William Young, dismissed his bluster out of hand. "You're a big fellow, but you're not that big. You're no warrior. I know warriors. You are a terrorist: a species of criminal guilty of multiple attempted murders," he said. "You're no big deal."
Reid is now at a maximum-security prison in Colorado. Nobody talks about him anymore.
* The U.S. may already be creating other out-of-reach
Guantanamos in such countries as Ethiopia.
* A special "national security court" could be set
up -- neither criminal nor military but with guarantees of
some basic rights for suspects.
* The criminal justice system has successfully convicted
many prominent terrorists -- it may still be the best venue.