We should be concerned about the al Qaeda and Taliban prisoners at the Guantanamo Naval Base. Almost 600 prisoners are held there because of their alleged status as illegal combatants in Afghanistan. Significantly, their Cuban location puts them beyond the jurisdiction of U.S. courts and out of reach of defense lawyers and habeas corpus petitions. The Guantanamo prisoners have not been declared to be prisoners of war (POWs); instead, they are called "detainees."
The 1949 Geneva Convention III (GC III), relative to POWs, was ratified by the United States and is binding law. It specifies that, should there be doubt as to whether a detainee is a POW, his status shall be determined at a hearing in accordance with article 5 of GC III, a brief hearing conducted usually by three officers. (We held 1,196 such hearings during the Gulf War.) The Justice Department has decided, however, that there is no doubt as to the Guantanamo prisoners' status, so no hearings need be held. Although the Red Cross and many of our allies disagree, the detainees were captured while bearing arms against us. Whether or not entitled to POW status, they do not merit the protections of the U.S. Constitution, any more than World War II enemy POWs. In accord with GC III and a presidential order of November 2001, the Cuba detainees receive humane treatment and some eventually will be provided trials before military commissions. Any constitutional concerns appear to be satisfied.
In contrast, Yaser Hamdi and Jose Padilla are detainees held in naval brigs in Norfolk, Virginia, and Charleston, South Carolina. Both are U.S. citizens. Hamdi was captured in Afghanistan in December 2001; Padilla was captured last May in Chicago—yes, Chicago. They are in solitary confinement, not charged with a crime, denied legal counsel, given neither trial nor release dates, and denied opportunity to post bail. According to the Uniform Code of Military Justice, they are not subject to court-martial, so they are not in military pretrial confinement. And, as citizens, they are outside the jurisdiction of military commissions. Should military officers be concerned? The commanding officer of the Norfolk brig could be worried that his facility is the vehicle for possibly unconstitutional confinement. He is named as respondent in several federal court actions filed by Hamdi's father. Given their oath to support and defend the Constitution, the rest of the officer corps might be concerned as well.
Does the Constitution apply to Hamdi and Padilla? Hamdi, captured in Afghan combat, admitted to being a member of the Taliban. We need not afford constitutional rights to enemy POWs, even U.S. citizens. We captured enemies who were citizens—two of the World War II German saboteurs who landed on the East Coast were naturalized citizens and were not afforded constitutional rights. But Hamdi alone was plucked from Cuba and put in the Norfolk brig. Obviously, he is not viewed as just another POW. Unlike the German saboteurs, who were given lawyers and tried within weeks of capture, Hamdi has no prospect of either trial or counsel. Padilla's case is even more disturbing. He was captured in a Chicago airport—no weapon, no incriminating documents, no suspicious behavior.
We are assured by U.S. Attorney General John Ashcroft that Hamdi and Padilla are "enemy combatants," a term previously unknown in the law of war, U.S. criminal law, and international law. "Enemy combatant" is used because "prisoner of war" and "illegal combatant" are inapplicable legally, and the term makes Hamdi and Padilla sound like people who belong in solitary confinement without counsel or trial. The U.S. government has tried other detainees in federal courts, but it sees these two as test cases. If the government prevails, a precedent will be established: label any citizen or alien an enemy combatant and the government can hold him indefinitely—not in Cuba, but in the United States—without charges and counsel, and without fear of his being freed by the courts.
Some will say, "Well, too bad for Hamdi and Padilla. Let them petition for habeas corpus, like every other criminal." But that is the point. They cannot seek habeas corpus because they cannot see a lawyer. Unlike accused murderers and rapists, they are without charges and without counsel, powerless to challenge their confinement.
One may accept President George W. Bush's assertions that Hamdi and Padilla are bad guys. But assertions are not a basis for open-ended confinement of U.S. citizens. We must consider what their situation augers for us all—and what it means in terms of the U.S. Constitution that military officers vow to defend.
Retired Marine Lieutenant Colonel Solis, a former judge advocate, is the Marine Corps’ chief of oral history. He teaches law of war at Georgetown University Law Center as an adjunct professor.