This article originally appeared at TomDispatch.com.
Karen Greenberg first arrived at TomDispatch in January 2005 in tandem with defense attorney Joshua Dratel. Their book The Torture Papers was just being published and they were asking questions. Thirty-seven of them, to be exact, all pointed, all uncomfortable, all directed at then-Secretary of Defense Donald Rumsfeld, all focused on the Bush administration's torture policies and what, after a visit to Guantanamo in 2007, Greenberg would term "the jewel-in-the-crown of American offshore prisons or, to be Pentagon-accurate, 'detention facilities.'" Here were just four of those questions: "Do you fear review by the courts? Why do you dismiss the role of the courts and ordinary law enforcement in eliciting information from prisoners in the war on terror? Isn't it possible that the art of interrogation, practiced by law enforcement officers and professional lawyers, might, in fact, elicit more important and more accurate information in assessing the motives, networks, and plans of terrorists than, say, dogs at Guantanamo Bay or waterboarding in some CIA holding area? What exactly was it you felt it was so important to keep secret from the courts?"
Almost 13 years later, Guantanamo remains open. It is still officially a "detention facility," not a "prison," and those held within it still aren't "prisoners" -- you weren't even allowed to use that word there in 2007 -- but "enemy combatants," a category the Bush administration believed put them beyond all legal norms, American or international. As Greenberg reports today, the Trump administration has just classified its first American prisoner off the battlefields of Syria as an "enemy combatant." Gulp.
And sadly, you already know just where our president, who praised torture to the heavens during campaign 2016 (while threatening to "take out" the families of terrorists), is likely to go with this. It seems that we're heading back to the future, back to what Greenberg, in another piece, written a mere two and a half years ago, called "the Age of Barbarism Lite." Let her then bring you up to date, while the rest of us only hope that she won't be back 13 years from now to tell us that the latest American president is once again stashing "enemy combatants" at Guantanamo Bay, Cuba. Tom
"Enemy Combatants" Again?
Will Washington Never Learn?
By Karen J. Greenberg
Eight years ago, when I wrote a book on the first days of Guantanamo, The Least Worst Place: Guanta'namo's First 100 Days, I assumed that Gitmo would prove a grim anomaly in our history. Today, it seems as if that "detention facility" will have a far longer life than I ever imagined and that it, and everything it represents, will become a true, if grim, legacy of twenty-first-century America.
It appears that we just can't escape the perpetual pendulum of the never-ending war on terror as it invariably swings away from the rule of law and the protections of the Constitution. Last month, worries that had initially surfaced during the presidential campaign of 2016 over Donald Trump's statements about restoring torture and expanding Guantanamo's population took on a new urgency. In mid-September, the administration acknowledged that it had captured an American in Syria. Though no facts about the detained individual have been revealed, including his name or any allegations against him, the Pentagon did confirm that he has been classified as an "enemy combatant," a vague and legally imprecise category. It was, however, one of the first building blocks that officials of George W. Bush's administration used to establish the notoriously lawless policies of that era, including Guantanamo, the CIA's "black sites," and of course "enhanced interrogation techniques."
Placing terrorism suspects apprehended while fighting abroad in American custody is hardly unprecedented. The U.S. government has periodically captured citizen and non-citizen members of ISIS, and fighters from the Somali terrorist organization al-Shabaab, as well as from al-Qaeda-linked groups. To those who have followed such matters, however, the Trump administration's quick embrace of the term "enemy combatant" for the latest captive is an obvious red flag and so has elicited a chorus of concern from national security attorneys and experts, myself included. Our collective disquiet stems from grim memories of the extralegal terrorism policies the Bush administration institutionalized, especially the way the term "enemy combatant" helped free its officials and the presidency from many restraints, and from fears that those abandoned policies might have a second life in the Trump era.
What, then, is an enemy combatant? After all, memories fade and the government hasn't formally classified anyone in custody by that rubric since 2009. So here's a brief reminder. The term first made its appearance in the early months after 9/11. At that time, then-Deputy Assistant Attorney General John Yoo -- who gained infamy for redefining acts of torture as legal "techniques" in the interrogation of prisoners -- and others used "enemy combatant" to refer to those captured in what was then being called the Global War on Terror. Their fates, Yoo argued, lay outside the purview of either Congress or the courts. The president, and only the president, he claimed, had the power to decide what would happen to them.
"As the president possess[es] the Commander-in-Chief and Executive powers alone," Yoo wrote at the time, "Congress cannot constitutionally restrict or regulate the president's decision to commence hostilities or to direct the military, once engaged. This would include not just battlefield tactics, but also the disposition of captured enemy combatants."
The category, as used then, was meant to be sui generis and to bear no relation to "unlawful" or "lawful" enemy combatants, both granted legal protections under international law. Above all, the Bush version of enemy-combatant status was meant to exempt Washington's captives from any of the protections that would normally have been granted to prisoners of war.
In practice, this opened the way for that era's offshore system of (in)justice at both the CIA's black sites and the prison camp at Guantanamo, which was set up in Cuba in order to evade the reach of either Congress or the federal court system. The captives President Bush and Secretary of Defense Donald Rumsfeld sent there beginning in January 2002 fell into that category. In keeping with the mood of the moment in Washington, the U.S. military personnel who received them were carefully cautioned never to refer to them as "prisoners," lest they then qualify for the legal protections guaranteed to prisoners of war. Within weeks, the population had grown to several hundred men, all labeled "alien enemy combatants," all deemed by Yoo and his superiors to lie outside the laws of war as well as those of the United States, and even outside military regulations.
American citizens were excluded from detention there. Some were nonetheless labeled enemy combatants. One -- JosePadilla -- was arrested in the United States. Another -- Yaser Hamdi -- was initially brought to Gitmo after being captured in Afghanistan, only to be flown in the middle of the night to the United States as administration officials hoped to escape public attention for their mistake.
Padilla had been born and raised in the United States; Hamdi had grown up in Saudi Arabia. To avoid the federal detention system, both would be held in a naval brig in South Carolina, deprived of access to lawyers, and detained without charge. For years, their lawyers tried to convince federal judges that keeping them in such circumstances was unconstitutional. Eventually, the Supreme Court weighed in, upholding Yoo's position on their classification as enemy combatants, but allowing them lawyers who could challenge the grounds for and conditions of their detention.
Although the government defended the use of enemy combatant status for years, both Padilla and Hamdi were eventually -- after almost three years in Hamdi's case, three and a half for Padilla -- turned over to federal law enforcement. Never charged with a crime, Hamdi would be returned to Saudi Arabia, where he promptly renounced his U.S. citizenship, as the terms of his release required. Padilla was eventually charged in federal court and ultimately sentenced to 21 years in prison.