By JOE FEUERHERD
Washington

Before the Senate Judiciary Committee Jan. 6, White House counsel Alberto Gonzalez spoke without equivocation. “I share [President Bush’s] resolve that torture and abuse will not be tolerated by this administration, and commit to you today that, if confirmed, I will ensure that the Department of Justice aggressively pursues those responsible for such abhorrent actions,” said the attorney general-designate.

Just a month earlier, on Dec. 1, U.S. government lawyers took a more nuanced approach to the question. Arguing in the federal district court in Washington, they said the government reserves the right to use information gleaned from interrogations carried out by other governments, including those that employ torture to coerce confessions, against those it labels “enemy combatants.”

The government’s argument was made in reference to Mamdouh Habib, an Australian citizen arrested in Pakistan in October 2001. Habib, long suspected by American and Australian officials of close ties to al-Qaeda, visited Pakistan in August 2001. He did so, according to court documents filed in November 2004, to seek work and arrange Muslim schooling for his teenage children. Following his arrest there, Habib says he was interrogated and abused by Pakistanis and American agents working with them. Soon thereafter, allegedly at the request of U.S. officials, he was transferred to his native country, Egypt, whose government is criticized by the State Department for employing torture techniques against all manner of prisoners.

During his six-month incarceration in Egypt, according to his court filing, Habib was isolated in a six-by-eight foot cell, regularly beaten, threatened with electrocution, stung by cattle prods and subjected to other forms of “unspeakable cruelty.” Among those overseeing the torture, Habib claimed, were English-speaking operatives with American accents. In early 2002 Habib was transferred yet again, this time to U.S. custody, finally landing at the Guantánamo prison in May 2002. Habib says he was subjected to additional torture at the Cuban prison.

Habib was fortunate in at least one respect. His Australian citizenship made his an unusual case at Guantánamo -- a Western connection among the nearly 600 alleged Afghani enemy combatants held without charge or counsel. Pleas for due process in his case were heard from international human rights groups as well as influential Australians, such as Bishop Christopher Saunders, chairman of the Australian Catholic Social Justice Council.

On Jan. 11, the Pentagon announced that Habib would be returned to Australia. Four British detainees, whose detention generated considerable government and media attention in the United Kingdom, would also be allowed to return to their countries, said the Pentagon.

Even their release, however, highlighted the arbitrary nature of the detention system. “The government was very careful to say that the timing of [Habib’s] release ‘remains under discussion,’ ” said Habib’s attorney, Joseph Margulies. “Well, it’s not been discussed with me or with the [U.S. district] court; so as far as we’re concerned he remains in unlawful custody.”

Still, the relative leniency demonstrated by the announced releases is out of character for the Bush administration, which has argued since the first detainees arrived at Guantánamo three years ago this month that the September 2001 Congressional resolution authorizing retaliation for the 9/11 terrorist attacks gives the government all the authorization it needs to hold “enemy combatants” without charge or access to counsel. Further, because Taliban fighters and al-Qaeda members operated outside the rules of war (by, for example, mixing in with the civilian population), the administration says they are not covered under protections provided by the Geneva Conventions to prisoners of war.

Even after the Supreme Court held, as it did last June, that such detainees have a right to judicial review of their status, the administration established procedures that critics charge are a sham. Begun in August, the military’s “combatant status review tribunals” are a one-time process whereby detainees get to contest their enemy combatant status. But they do so without assistance of counsel in a setting run by and for the military, said Margulies. Nor is there any specific accusation brought against the detainees as part of the process. Of the first 230 tribunals conducted, 228 detainees were determined to be “enemy combatants” and two were returned to their home countries.

Meanwhile, the institutionalization of secret detention continues, with multi-million dollar expansions and upgrades planned for the Guantánamo facility. The Washington Post reported Jan. 2 that Defense Department and CIA officials are seeking “a more permanent approach for potentially lifetime detentions.” Among the options: the creation of a new detention facility or the construction of prisons in the home countries of alleged terrorists. “Since the global war on terror is a long-term effort, it makes sense for us to be looking at solutions for long-term problems,” a Pentagon spokesperson told the Post.

That approach has support at the administration’s highest levels.

“You’ve got to understand the dilemma we’re in,” President Bush told a December news conference. “These are people that got scooped up off a battlefield attempting to kill U.S. troops. And I want to make sure before they’re released that they don’t come back to … kill again.”

Early last year, Defense Secretary Donald Rumsfeld defended the practice. “Very simply,” he told the Miami Chamber of Commerce, “the reason for their detention is that they’re dangerous. Were they not detained, they would return to the fight and continue to kill innocent men, women and children.” Said Rumsfeld, “They’re enemy combatants and terrorists who are being detained for acts of war against our country and that is why different rules have to apply.”

Few dispute the assertion that “different rules have to apply” to “enemy combatants,” said Neal Sonnett, chairman of the American Bar Association Task Force on Treatment of Enemy Combatants. The problem the association and other civil liberties groups have is that there seem to be no rules, or that they are so secret that the key players don’t know what they are. “It’s one thing to say that the government has the right to take combatants off the battlefield until the end of hostilities; it’s another to strip the rights of people who are detained and deny them any of the protections our Constitution and international treaty obligations, including the Geneva Conventions, provide,” said Sonnett.

“The problem is not in the abstract statement that we will hold people until the end of hostilities,” said Margulies. “The devil is in the details.”

The government maintains, said Margulies, that it has the right to detain anyone it deems an enemy combatant for as long as it determines it must -- including, in theory, people thousands of miles away from any battlefield who may have provided inadvertent financial support to a terrorist group they thought was a legitimate charity. “The executive [branch] has the authority to detain,” said Margulies, “but not to hold them without the legal review of a court to determine the lawfulness of that detention.”

That very dispute will get an answer as early as this month, when a federal judge considers the government’s request to dismiss a case brought by 70 Guantánamo detainees seeking a more transparent process.

Joe Feuerherd is NCR Washington correspondent. His e-mail address is jfeuerherd@natcath.org.

National Catholic Reporter, January 21, 2005