After Ruling, Uncertainty Hovers at Cuba Prison
By TIM GOLDEN
Published: June 30, 2006
GUANTÁNAMO BAY, Cuba, June 29 — As the Supreme Court prepared to rule on the
Bush administration's plan to try terror suspects before special military
tribunals here, the commander of Guantánamo's military detention center was
asked what impact the court's decision might have on its operations.
"If they rule against the government, I don't see how that is going to
affect us," the commander, Rear Adm. Harry B. Harris, said Tuesday evening
as he sat in a conference room in his headquarters. "From my perspective, I
think the direct impact will be negligible."
The Defense Department repeated that view on Thursday, asserting that the
court's sweeping ruling against the tribunals did not undermine the
government's argument that it can hold foreign suspects indefinitely and
without charge, as "enemy combatants" in its declared war on terror.
Privately, though, some administration officials involved in detention
policy — along with many critics of that policy — were skeptical that
Guantánamo could or would go about its business as before. "It appears to be
about as broad a holding as you could imagine," said one administration
lawyer, who insisted on anonymity because he was not authorized to discuss
the ruling. "It's very broad, it's very significant, and it's a slam."
For the moment, the effect of the court's ruling on the detention and
interrogation operations at Guantánamo is likely to be as political as it is
Construction crews went to work Thursday morning as usual at Camp Six,
putting final touches on a hulking, $24 million concrete structure that is
to be the permanent, medium-security facility for terror detainees.
President Bush and other officials have said repeatedly of late that they
have yet to find a better place to incarcerate the dangerous men still held
at Guantánamo, and there is no indication that the administration has
seriously begun to widen its consideration of those possibilities.
But administration officials said Thursday that they would have no choice
but to start thinking anew about the problem.
Over the last six weeks, the military custodians at Guantánamo have been
rocked by desperate protests — the suicides of three detainees who hanged
themselves from the steel-mesh walls of their small cells, the intentional
drug overdoses of at least two other prisoners, and a riot against guards in
a showcase camp for the most compliant detainees. Those events, in turn, set
off new waves of criticism of the camp from foreign governments, legal
associations and human rights groups.
Thursday, in rejecting the administration's elaborate plan to try Guantánamo
detainees by military commission, as the tribunals are called, the court
struck at one of the first ramparts the administration built to defend
itself against criticism that Guantánamo was a "black hole" in which men
declared to be enemies of the United States were stripped of rights
guaranteed by the Constitution.
"It strengthens calls for solving 'the Guantánamo problem,' " the
administration lawyer said. "Not because it deals with the detention issue
directly, but because it removes the argument that soon there would be more
legal process there."
While officials at the White House counsel's office, the Justice Department
and the Pentagon begin considering how to seek Congressional authorization
for a new version of military commissions or perhaps to prosecute terror
suspects in military courts-martial, Defense Department officials said
Guantánamo would operate much as before.
"Guantánamo serves as an important detention and intelligence facility,"
said a senior Pentagon spokesman, Bryan Whitman. "These are dangerous
people. Many have vowed to go back to the battlefield if released. It
enables us to thwart future attacks."
Only 10 of the approximately 450 detainees now held at Guantánamo have been
formally charged before the military commissions. Officials declined to say
whether those detainees — who include Salim Ahmed Hamdan, a onetime driver
for Osama bin Laden who was the plaintiff in the Supreme Court case — might
now be moved back out of the maximum-security cells in which they have been
held since pretrial hearings for the commissions began to accelerate in
The court's ruling is expected to jump-start litigation in more than 100
district court cases on behalf of the detainees, and could also allow for
new cases, officials and lawyers for the detainees said. Those cases cover a
wide range of issues dealing with the prisoners' treatment, including their
medical attention and how they are interrogated.
"What the decision says is that the government cannot hold these prisoners
lawlessly," said Joseph Margulies, a lawyer with the MacArthur Justice
Center in Chicago who has defended one of the military commission defendants
and is the author of a new book, "Guantánamo and the Abuse of Presidential
"It is now incumbent on the government to come into federal court and
demonstrate the lawfulness of the detentions," Mr. Margulies said. "It
cannot hold people in conditions that are cruel and degrading. It cannot
apply coercive interrogation techniques."
Military and intelligence officials at Guantánamo said they had stopped
using such interrogation methods, and had taken many steps over the last two
years to treat the detainees more humanely. Now, however, issues like how
detainees on hunger strikes should be force-fed will again be litigated.
Officials said the ruling was also likely to influence a long-running debate
within the administration over whether to explicitly apply a minimum
standard from the Geneva Conventions to the treatment of all military
The debate has focused on a proposed Pentagon directive that would establish
guidelines for interrogating detainees as well as on a draft field manual
for Army interrogators.
Some officials, including lawyers in the military services and the State
Department, have advocated drawing the language of those documents directly
from Article 3 of the Geneva Conventions, which sets out that minimum
standard for the treatment of captured fighters and others in conflicts that
do not involve nation states.
Other officials, led by Vice President Dick Cheney's chief of staff, David
S. Addington, have opposed any direct reference to Article 3. These
officials argued in part that Mr. Bush rejected that standard when he
determined in 2002 that terror detainees should be treated humanely even
though the conventions did not apply to the conflict in which they were
involved, officials familiar with the debate said.
In his majority opinion, Justice John Paul Stevens said that the United
States was legally bound by Common Article 3, as the provision is known (it
is common to all four Geneva Conventions). He said the article "affords some
minimal protection" to detainees even when the forces they represent are not
signatories to the conventions themselves.
The court's ruling was also a setback to the administration's litigation
strategy in cases involving the detention and prosecution of terror
suspects. That strategy, according to current and former officials, has been
to press for the most expansive interpretation of executive power — and the
toughest military commissions possible — and to back down only if the courts
Federal courts previously ruled in the administration's favor in several
important decisions involving Guantánamo. And despite the qualms of some
legislators, the Congress made no significant effort to intervene in
detention policy until Senator John McCain, Republican of Arizona, began his
successful push last summer to prohibit the cruel, inhumane or degrading
treatment of terror detainees held by the military.
However the policies on prisoner treatment at Guantánamo are ultimately
resolved, the administration has already quickened the pace of its efforts
to repatriate as many of the detainees as possible. Some 300 have been sent
home, either for continued detention by their own governments or to be
In Washington on Thursday, President Bush repeated that he hoped to find "a
way to return people from Guantánamo to their home countries." He added,
however, that some of the detainees "need to be tried in our courts."