Guantanamo's Problem Isn't in Cuba. It's in Washington.

Congress's failure to write legislation creating due process for the foreign detainees at Guantanamo Bay has blotted America's reputation and mocked the rule of law.

By Jonathan Rauch

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?

In May, Amnesty International called Guantanamo "the gulag of our times, entrenching the notion that people can be detained without any recourse to the law." Guantanamo is not a gulag, but the term would look absurd instead of merely overblown, even to Amnesty, if detainees were not disappearing into the legal equivalent of a black hole. For lack of due process and legal authority, says Schiff—a former federal prosecutor, with a prosecutor's understanding that there can be no true order without law—"we're enduring criticism from around the world, which is unnecessary and unhelpful."

Until Congress steps in, he adds, "courts will decide this in a haphazard, piecemeal fashion." Designing an unprecedented detention system by means of an executive-judicial tug-of-war may make for good fun, but it won't make for good law. Then there is the damage that Congress does to its own standing and to representative democracy by neglecting what Schiff identifies, rightly, as the major civil-liberties issue of our day. "It's Congress's institutional responsibility to set out what the standards of due process should be," he says. "These are very difficult questions—and so far, we've abdicated."

The Schiff bill (the Guantanamo Detainees Procedures Act of 2005) does four things. First, it affirms the president's authority to detain foreign nationals as unlawful combatants (a status the bill defines). Second, it entitles detainees to a status hearing before an independent military officer within six months. Third, it requires the government either to bring formal charges against detainees or to repatriate or release them within two years, unless the Pentagon certifies that it needs more time for particular detainees and explains why. Fourth, it requires the Defense Department to put the cases before tribunals that operate under clear standards and procedures, including the right to counsel and to present exculpatory evidence.

Schiff sees his bill as a starting point, not a perfect solution. Unfortunately, it hasn't gotten started. The bill boasts a total of three co-sponsors, all Democrats. A companion bill, the Detention of Enemy Combatants Act, sets out a process for detainees who are American citizens or legal residents. The House Judiciary Committee, on which Schiff serves, has held no hearings on either detention bill and, according to a spokesman, plans none.

By way of contrast, the Judiciary Committee has held 12 hearings since April on the renewal of the USA PATRIOT Act, for which the burning question is not whether the government can jail people indefinitely, without charge or trial, but whether the government can look at people's library slips. Rarely has Congress's energy been so oddly allocated.

Knowing President Bush, he was tempted in the weeks after September 11 to claim that he needed no permission from any darned Congress to look at library slips, but he had the wisdom to ask for legislation. In the end, he got practically all the powers he wanted, and he got something more important than power, something he lacks in Guantanamo: authority. He also catalyzed a national debate that clarified the public's priorities; he provided clear statutory guidance and thus a safe harbor for police and prosecutors; and he stamped the PATRIOT Act with the legitimacy of democratic approval. Imagine how much less sinister Guantanamo would look if it had been handled in the same way.

Schiff introduced his first detention bill in 2002, then tried again in 2003. He never got more than 20 co-sponsors—or a single Republican. "This has been a lonely field," he says. Still, "I really believe Congress will be stirred to action," Schiff says. "It's just a question of how long it's going to take."

A windsock fluttered last week when The Hill reported that three prominent Senate Republicans—Lindsey Graham of South Carolina, John McCain of Arizona, and Armed Services Committee Chairman John Warner of Virginia—plan to craft legislation on military detainees. Those guys will be harder for the White House and the Republican leadership to ignore than a third-term House Democrat.

Or so one must hope. Congress's detainee abdication has blotted America's reputation and mocked the rule of law. Guantanamo needs to be fixed, and soon; and the fixing needs to be done in Washington, not Cuba.

This article available online at:

http://www.theatlantic.com/magazine/archive/2005/07/guantanamos-problem-isnt-in-cuba-its-in-washington/304153/