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How long can Guantanamo prisoners be held?

The building of a permanent detention facility highlights an emerging US tactic: long-term holding of captives.

By Staff writer of The Christian Science Monitor / April 9, 2002


Within the next two weeks, all 299 suspected terrorists in US custody at Guantanamo Bay, Cuba, are set to leave their makeshift cells at Camp X-Ray and move to a new detention facility on a rocky bluff overlooking the Caribbean Sea.

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The view is spectacular. The ocean breeze is balmy. But that is where any similarity to a seaside vacation will end for Al Qaeda and Taliban fighters who find themselves behind bars at the soon-to-open Camp Delta.

The new terrorist detention facility is being built as a permanent structure, capable of housing up to 2,000 men in individual cells – potentially for the rest of their lives.

Construction of the new camp highlights an emerging tactic in the Bush team's war on terrorism: the open-ended detention of large numbers of terror suspects.

While the prospect of military tribunals has sparked extensive debate, this move toward indefinite detention has drawn relatively little attention. Yet at issue is whether President Bush can order Taliban and Al Qaeda captives detained – without formal charges, access to lawyers, or opportunity for independent judicial review – for as long as they are deemed a threat to US security.

"What the administration is trying to do is create a new legal regime," said Deputy Assistant Attorney General John Yoo in a recent speech about the Bush team's approach to dealing with terrorism. Mr. Yoo is a constitutional-law adviser to Attorney General John Ashcroft.

Supporters see the move as a common-sense approach to a new kind of high-stakes warfare where a single terrorist wielding a small nuclear device could wipe out an entire city. On the other hand, some critics say the move could erode America's moral authority in the global fight for human rights.

What the Geneva accords say

Under the Geneva Conventions, prisoners of war are to be held for the duration of a conflict and returned home when the war is over. But administration officials say those rules are designed to apply only to warfare between armies of competing nation-states.

Yoo, for one, maintains that those rules have no application in a loosely defined war on terrorism waged against a murky network of secret operatives. "In the military system [defined by the Geneva Conventions], people are detained usually until the end of the war, and then they are released, [and] they go home," he says. "Does that make sense in this kind of a conflict, where the individuals in question who are being detained are members of terrorist organizations?"

Yoo adds, "Does it make sense to ever release them if you think they are going to continue to be dangerous even though you can't convict them of a crime?"

Indefinite detention is not a new concept. The British used it in Northern Ireland against the Irish Republican Army. And Japanese-Americans were subject to it during World War II in an episode that most Americans now deeply regret.