Debate deepens over Guantánamo

In Washington, debate over conditions at the US detention facility at Guantánamo Bay, Cuba, is escalating into a larger argument: What role should detention properly play in a conflict with stateless, extremist enemies?

To top US officials, the war against terrorism is unexplored territory. Thus traditional doctrines covering criminals and military prisoners do not apply.

To critics, the continued fuzzy legal status of Guantánamo detainees undermines US values - not to mention the nation's image abroad. Shutting the camp, they claim, is now the administration's best option.

Both sides have legitimate points, say some experts on international law. But controversy over the subject may have become so heated that it's difficult for either to hear the other. "Let's get together and see what kind of law applies," says Hurst Hannum, a professor of international law at Tufts University's Fletcher School.

The most recent round of dispute over the Guantánamo facility began with Amnesty International's charge that it represents a "gulag." The group's just-issued annual report on human rights particularly takes issue with the extralegal nature of the camp. Hundreds of detainees continue to be held at the Cuban base without charge or trial, the report noted.

"Neither the identities nor the precise numbers of detainees held in Guantánamo were provided by the Department of Defense, fueling concern that individual detainees could be transferred to and from the base without appearing in official statistics," said the annual study.

Administration officials launched an organized rebuttal of the "gulag" charge, noting that the nature and scope of the barbarism in Soviet gulag camps surpassed anything even alleged to have occurred under US auspices.

Information from a prisoner alleged to have endured rough interrogation tactics at Guantánamo - Mohammad al-Qahtani - led to the capture of the alleged plotter behind the Sept. 11, attacks, Khalid Shaikh Mohammed, said Secretary of Defense Donald Rumsfeld June 14.

Furthermore, said the Pentagon chief, the information helped head off planned terror attacks.

"The real problem is not Guantánamo Bay. The problem is that, to a large extent, we are in unexplored terroritory with this unconventional and complex struggle," Mr. Rumsfeld told reporters.

At a Senate hearing June 15, top military offiicals further defended the camp at which Taliban and Al Qaeda suspects captured in Afghanistan are held.

Guantánamo is not just a holding pen for innocents swept up in a US dragnet, Navy Rear Adm. James McGarrah told the Senate Judiciary Committee. Of 558 detainees given hearings at the camp, 520 were "properly classified" as enemy combatants. Twenty-three of the remaining 38 have now been released.

"America is at war. It is not a metaphorical war," Air Force Brig. Gen. Thomas Hemingway told the panel.

The senior Democrat on the committee, however, called the camp an "embarrassment to our nation."

Rather than simply jailing people for the indefinite duration of a war on terrorism, the US should try the detainees if there is any evidence of cirminal activity or terrorism on their part, added Sen. Patrick Leahy (D) of Vermont.

"Let's bring the evidence forward," he said.

One of the main reasons that the US set up the camp at Guantánamo in the first place was that officials wanted to try to avoid just such questions of judicial review, say some legal analysts.

Last June, however, the US Supreme Court ruled that US federal courts had jurisdiction over the Guantánamo detainees. Critics complain that since then the US government has moved slowly, if at all, to comply with the Supreme Court ruling.

There is a body of international human rights law that should apply to the Guantánamo detainees as well, says Hurst Hannum of Tufts University, though many of these statutes require that avenues of appeal available under national laws first be exhausted.

Detention of suspected terrorists without trial is not necessarily illegal under international law, says Dr. Hannum. But the current situation, in which the US finds itself with hundreds of faceless detainees facing indefinite detainment, is unprecedented. "No one anticipated the situation we find ourselves in today."

At a recent Council on Foreign Relations debate, John Choon Yoo, a University of California law professor, said that deciding what to do about Guantánamo detainees in the face of a war without large battles or disputed territory is the most difficult legal policy question of the whole conflict.

"I think all these folks do get released legally when the war with Al Qaeda is over," said Dr. Yoo. "I think we are at war with a specific entity, not a social problem."

According to Kenneth Roth, executive director of Human Rights Watch, the debate is about whether the US should follow the norms and values developed in the modern era. He called the physical stresses some detainees are subjected to during interrogation "un-American."

"There are no exceptions [to US legal safeguards], even in the face of a public emergency threatening the life of the nation," said Mr. Roth.