On June 23, Rep. Adam Schiff, a third-term Democrat from California, went to the House floor and did something shocking. He introduced a bill. This was shocking, at least, by the standards of the 109th, 108th, and 107th Congresses. No one else has dared to write legislation creating due process for the 520 or so foreign detainees whom the Pentagon is holding at the U.S. naval station at Guantanamo Bay, Cuba.
The Bush administration has been picking up, imprisoning, and interrogating people it regards as "enemy combatants" since the World Trade Center's twin towers fell. In this new kind of war, the administration said, many of America's most dangerous enemies are beyond the reach of conventional criminal law, and many are also too dangerous to release.
All true. The country faced an emergency after 9/11. So the administration unilaterally declared and exercised what amounts to selective martial law: the power to detain suspected enemies and hold them incommunicado, without meaningful access to courts or lawyers, for as long as they are deemed dangerous or able to provide useful intelligence. Two U.S. citizens were arrested and held in this way; hundreds of foreigners were sent to Guantanamo; more than 200 of them, according to the Pentagon, have since been released.
Many of the detainees are dangerous people. The Pentagon says it knows of approximately a dozen who returned to anti-U.S. activities after being released. All but the most obsessive civil libertarians agree that some sort of system for detaining and interrogating terror suspects is as necessary as it is unfortunate.
A funny thing, however, has happened to the post-9/11 legal state of emergency: nothing. The war on terror began almost four years ago. Yet the emergency drags on, with no sign that the White House intends to bring the ad hoc detention system within any framework of regular law. The situation is still "new." In April, Attorney General Alberto Gonzales told the House Judiciary Committee, "It's a new kind of war and some of the old rules just don't apply." On June 26, on NBC's Meet the Press, Defense Secretary Donald Rumsfeld proclaimed that, where detentions are concerned, "we're in a new era."
How long is this "new era" going to last before the White House decides to ask Congress for new rules? A while, apparently. Rumsfeld allowed that the treatment of detainees "deserves debate and discussion," but he said nothing about legislation. Schiff asked Gonzales, at the April hearing, whether the administration would work with Congress to establish due process for military detainees. "I'd have to look at the circumstances; I'd have to look at the legislation, quite frankly," replied Gonzales, blandly ducking.
In October 2003, Michael Chertoff, then a federal judge and now the Bush administration's secretary of Homeland Security, called in a speech for a "long-term and sustainable architecture for the process of determining when, why, and for how long someone may be detained as an enemy combatant, and what judicial review should be available." Throwing people into camps or brigs extrajudicially and indefinitely, he implied, would not prove to be a sustainable policy over time.
He was right, and time is up. Guantanamo has blown up in the country's face. Most inflammatory have been allegations that detainees have been physically abused and sexually humiliated, and that Korans have been defiled. Actually, many of the charges seem overblown (as with the Korans) or out of date. Congressional delegations, including skeptical Democrats, who have visited recently say that Guantanamo has cleaned up its act. Rep. Ellen Tauscher, D-Calif., who visited in late June, told reporters, "Guantanamo has been improved so it now meets the standards of a maximum-security prison in the United States."
The problem that remains pressing at Guantanamo—more pressing by the day, in fact—is not the detainees' physical treatment but their legal treatment. "We need to move on to the due process part of this and have them adjudicated," Tauscher said. "We have got to get this right. We have to remove Guantanamo from this lightning-rod status."
Guantanamo's twilight-zone existence was a legal problem from the beginning, but now it has become a foreign-policy problem. The world will never be happy with American detention camps (in fact, Americans will never be happy with them), but what kind of country seizes and imprisons foreign nationals on no charges and holds them indefinitely without trial?