How long can Guantanamo prisoners be held?
The building of a permanent detention facility highlights an emerging US tactic: long-term holding of captives.
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.
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.
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.
Indeed, one of the fundamentals of American justice is the idea that people can't be tossed into jail indefinitely just because they anger or frighten a government official. To take away a person's liberty even temporarily requires that an independent judge agree that the government's actions are warranted because of a probable violation of the law.
Without that independent determination, there is no check against the kind of arbitrary confinement that exemplifies the world's most brutal dictatorships, legal analysts say.
But Guantanamo is different, administration officials insist. US constitutional safeguards do not apply to foreign nationals being held at the US naval base in Cuba, they say. That's in addition to their questioning the application of international law and the Geneva Conventions to Al Qaeda and Taliban detainees.
Administration officials view the Guantanamo detention operation as a direct extension of Mr. Bush's power as commander in chief to wage war. It is not an attempt by the executive branch to usurp a judicial function.
Rather, it is a means to neutralize suspected terrorists through a process that looks like law enforcement, administration supporters say.
Critics view the administration's approach as an attempt to circumvent a well-established body of international law barring such treatment of detainees.
"What is at stake here is whether the president of the United States will be able to imprison people indefinitely simply at his own discretion without having to establish any legal basis for doing so," says William Goodman, legal director of the Center for Constitutional Rights in New York.
"It is obviously a challenge to reconcile these competing visions," says Eugene Fidell, a Washington lawyer and president of the National Institute for Military Justice. "Hold it up to the light one way, and it looks like a war being fought by attorneys. Look at it another way, and it looks like criminal prosecution and crime prevention being waged by soldiers."
An open-ended detention policy may work to undermine international respect for due process and fundamental fairness, says Michael Posner, executive director of the Lawyer's Committee for Human Rights in New York. "You go around the world and look at the number of countries that allow long-term detention without trial," he says. "We are in effect writing new precedents that other governments are going to rely on and that is not in the interest of global human rights."
Others say the US has a responsibility to ensure that dangerous people once captured are not allowed to engage in future terrorist attacks. "America is at war, and these individuals are the combatants in that war," says David Bossie, president of Citizens United, a conservative grass-roots advocacy group in Sterling, Va. "If they were released, they would go back to the battlefield, wherever that battlefield might be. It could be Afghanistan; or Paris, France; or New York City."
Mr. Bossie adds: "It is our responsibility to not allow that to happen once we have them in custody. Therefore, it is acceptable to hold these people for as long as necessary."