The Detention Dilemma
What is to be done with captured terrorists who are neither prisoners of war nor charged with a crime?

Monday, June 19, 2006; A20

ONE OF THE hardest questions in the fight against al-Qaeda is what to do when you catch a dangerous terrorist abroad. But that can't excuse the Bush administration, nearly five years into the war, still not having an answer.

Currently no federal statute governs where or how long a detainee may be held or what his rights are. Nor do the Geneva Conventions, which President Bush in any event wrongly set aside. No law governs whether he will be prosecuted, released, transferred to another country or indefinitely detained. No law guarantees him judicial review or access to counsel. The result is a haphazard system driven more by convenience to the administration than by reason or justice.

Some Taliban fighters and al-Qaeda militants are held at Guantanamo Bay, Cuba, subject to an initial status hearing to determine whether they are "enemy combatants" and then an annual review of whether they are still dangerous. A different group is held at Bagram air base in Afghanistan, which has a less protective set of rules. Still others get turned over to foreign governments, while high-value al-Qaeda detainees are whisked away to secret CIA prisons with no known rules at all. It is long past time to rationalize this system and bring it into accord with international norms through predictable and defensible laws, passed by Congress and worthy of a democracy.

Detainees often do not qualify as prisoners of war, fighting in the uniforms of enemy nations; they may not have committed crimes for which they can be charged in a U.S. court; yet they may be far too dangerous to be released.

The administration's insistence on treating them as enemy combatants -- subject to detention with little review for the duration of the conflict -- is unsustainable. The line between fighters and civilians is sometimes too murky, and the conflict's duration too indefinite.

But the administration is correct that not every detainee can be read Miranda rights and either charged with a crime or quickly released. America needs a legal regime for detentions that responds to the unprecedented nature of the current conflict.

This new regime actually would apply to a smaller group than it may seem. Many of the inmates at Bagram and Guantanamo are Afghans whom the administration will transfer to Afghan custody once a new prison there is ready.

Yemeni and Saudi prisoners may be transferred home, too. Numerous other inmates could be charged with crimes, providing a sounder legal basis for their long-term detentions. What's left is a core of al-Qaeda inmates who have committed no known crime, whose governments will not take responsibility for them, who possess intelligence value and who pose a real danger of committing acts of terrorism.

Other countries that have faced sustained confrontations with terrorism have generally used administrative detention laws to lock up such people. These laws make human rights advocates uneasy -- as well they should. Any laws that permit long detentions without charge threaten liberty. But administrative detainees both in Israel and under Great Britain's old law, which is no longer in effect, have had far more rights than U.S. detainees do now. In the Israeli-occupied territories, for example, administrative detainees are entitled to a lawyer and an appearance before a judge within eight days of arrest; each detention must be reauthorized every six months and can be challenged in court. By contrast, even under Guantanamo's relatively generous procedures, detainees get no lawyers for their initial status hearings or for their review hearings, which take place only once a year.

Properly crafted, an administrative detention law for foreign detainees captured abroad would provide for a substantial military hearing to establish that an inmate is actively engaged in terrorist activity. The hearing would take place promptly, with military counsel available to the detainee and able to attack the government's evidence. A finding that an individual may be detained would entitle the military to hold and interrogate him, but it would be subject to appeal to the federal court system and regular review. Critically, it would have the imprimatur of Congress, and it would apply to all detainees who are neither under indictment nor held under the Geneva Conventions.

The goal should be a system that regulates, legitimizes and subjects to rigorous oversight detentions that the administration now treats as outside of both the laws of war and the protections of criminal law. The administration cannot create such a regime on its own. It can do so only by inviting the other two branches of government into the process.

This is the second in a series of editorials about the Bush administration's detention and treatment of foreign prisoners. The full series will be available at