Jail Without End

The United States today can be likened to a party of travelers in danger - in the path of a forest fire, for instance, or tossed about in a stormy sea. To survive they must make the right moves -find a road that leads out of the woods or discover a harbor that provides shelter. That means they must also avoid taking a wrong turn that would worsen their predicament. U.S. policy makers have been confronting dilemmas of this sort ever since the terrorist attacks of Sept. 11, 2001, brought on the so-called global war on terrorism. Security must be strengthened without making decisions that may themselves be damaging.

There is no doubt that the country is in peril. Last month Porter J. Goss, the new director of the Central Intelligence Agency, said in testimony before the Senate Intelligence Committee, It may only be a matter of time before Al Qaeda or another group attempts to use chemical, biological, radiological and nuclear weapons in an attack somewhere on U.S. soil.


This warning must be taken seriously, and the Bush administration is doing just that. But it is also said to be considering measures that would themselves be dangerous, because they would compromise the ideals of justice that terrorists reject.

One measure of this sort was uncovered in the Jan. 2 issue of The Washington Post. The paper reported that several power centers, including the White House, the State Department, the Pentagon and the C.I.A., are developing plans to detain indefinitely and without formal charges those suspected terrorists who are currently imprisoned in makeshift facilities on the naval base at Guantánamo Bay, Cuba, and at undisclosed sites elsewhere around the world.

These detainees are vaguely labeled enemy combatants, because they cannot accurately be called prisoners of war. When the troops of a nation with which the United States is waging a declared war are captured on the battlefield, they are held as prisoners of war. As such they are protected by the Geneva Conventions, but they have no right to a legal review of their imprisonment. They are released when the war ends.

The approximately 600 suspected terrorists now held at Guantánamo Bay were not captured in uniform, but when U.S. personnel swooped down upon them in Pakistan, Afghanistan or elsewhere. They are indeed suspected of being terrorists but have not yet been proven to be so. All the same, after prolonged, frequent and sometimes brutal interrogations, these prisoners continue to be kept in custody without protection of the Geneva Conventions and without charges being brought against them or trials held.

According to The Washington Post article, the Bush administration is thinking of building more permanent facilities in which these uncommunicative suspects can be detained indefinitelyperhaps for years. A spokesman for the Pentagon, Bryan Whitman, told The Post, Since the global war on terror is a long-term effort, it makes sense for us to be looking at solutions for long-term problems.

The global war on terrorism may indeed last for decades. Meanwhile, are the detainees to languish in new facilities, which presumably will be more humane than those in which they are now being held? It would be reasonable to keep them under surveillance once they were released, but the government wants to keep them locked up. Why? Perhaps it is hoped they will eventually prove useful, although extensive grillings have not yet produced any reliable informationat least none that has been revealed.

It appears that the government is unable or unwilling to produce evidence of guilt and therefore opposes any military or civil trials that might conclude that a case for open-ended detention cannot be made. At the same time, U.S. authorities do not want to release the suspects, because they believe these prisoners are in fact terrorists, who would return, more embittered than ever, to campaigns of destruction.

Indefinite detention without evidence of guilt and an impartial review of the grounds for detention would deprive the prisoners at Guantánamo of one of the most profoundly cherished of human rights: the right to freedom. It might be added that the custodians of the suspects are not positioned to make that impartial review.

In January of this year, Judge Joyce Hens Green of the Federal District Court in Washington, D.C., ruled that the Guantánamo Bay detainees are entitled to have a federal court determine whether or not their detention is lawful. The nation must unquestionably take strong action against enormous and unprecedented threats, the judge said; but, she added, that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over 200 years.

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