Interventions: A Middle East Report Online Feature

Beating a Slow, Stubborn Retreat at Guantánamo Bay

Charles Schmitz

May 2005

(Charles Schmitz is an associate professor of geography at Towson University in Baltimore.)

Just under a week after the collapse of the Taliban's rule in Afghanistan, President George W. Bush issued Military Order 1 to establish principles for the “ detention, treatment and trial of certain non-citizens in the war against terrorism.” The order, promulgated on November 13, 2001, was the first step in the Bush administration's careful crafting of the term “illegal combatant” to describe a nebulous third category of detainee outside the Geneva Conventions' clear division of prisoners into either civilians or military personnel. “Illegal combatants” were not to be accorded the protections of either the international laws of war or the laws of the United States. Section 7 of Military Order 1 explicitly denies detainees in the war on terrorism access to US courts or international courts.

Instead, the sweeping document gives the president the power to create a class of people -- foreign members of al-Qaeda and supporters -- who are subject to his jurisdiction. It further grants him or his delegates the authority to determine whether an individual belongs in that class. Finally, the order gives the president the power to detain everyone in this class of people and determines that these people are subject to trial by US military commission alone. In August 2004, Salim Ahmed Hamdan was one of four of the roughly 550 detainees then remaining at the detention and interrogation center who were charged and brought before Bush's special military tribunal in Guantánamo Bay, Cuba.  

The Bush administration's claim of authority for military tribunals has not gone unchallenged. Legal battles over the detention of “illegal combatants” at the US naval base at Guantánamo Bay began very shortly after the arrival of the first detainees early in 2002. The continuing legal chaos caused by the government's actions at Guantánamo Bay are partly a result of the base's location, as one lawyer put it, “on the very distant edge” of the legal terrain. Guantánamo lies in the legal twilight where US global dominance meets a world still divided into independent nation-states, while the world's growing interdependence demands transnational political and legal identities and institutions that are lacking as of yet.  

In its ongoing arguments in federal courts, the strategy of the Bush administration is to extend the reach of the executive branch of government far into the international arena while leaving the checks and balances of the Constitution stateside. At the heart of the contentious proceedings is the crucial question of whether the Constitution and its principles follow the US flag around the world. Thus far, despite numerous semantic gyrations, the government has been stubbornly beating a slow retreat in a losing legal battle over the fate of the detainees at Guantánamo Bay.  

Battle Rejoined

The battle was rejoined on April 7, 2005 when the US Court of Appeals for the District of Columbia heard the government's appeal of a major reversal they suffered in November 2004. Some months earlier, Salim Hamdan's court-appointed military lawyer, Lt. Cmdr. Charles Swift, had filed suit in federal court to stop what he called the “kangaroo court” set to try his Yemeni client, who stands accused of being a driver for Osama bin Laden and an “active member” of al-Qaeda. Hamdan does not have any relatives in the United States who could raise a defense in federal court for him, and so he allowed the naval officer to become his legal “next friend” and file suit on his behalf. Hamdan and Swift won the first round of their particular fight -- whose eventual outcome will have far-reaching consequences.

In November, Judge James Robertson halted the special military tribunals at Guantánamo Bay until such time as they could conform to the legal standards of a “regularly constituted court,” conceived by Robertson as a regular military court martial. As the legal foundation for his ruling, Judge Robertson found that, contrary to the Bush administration's contention, the Geneva Conventions do indeed apply to the detainees at the base in Cuba. Therefore, the use of secret evidence that the accused could not confront in Guantánamo's special military tribunals was in direct violation of Article 3, Section 1(d) of the Geneva Convention's requirements for a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Furthermore, Robertson declared that the “regularly constituted court” clause in Geneva should be understood as to convey all the rights, procedural and substantive, that are prescribed in the Uniform Code of Military Justice of the United States. Thus, the fact that Hamdan had been excluded from a secret hearing in the military commissions in August 2004 was enough for Robertson to order the commissions halted on the grounds that Hamdan's exclusion violated Section 839 of Title 10 of the code, the rules of a court martial, which states that “proceedings shall be conducted in the presence of the accused.”

Not only does international law apply in Guantánamo Bay, ruled Judge Robertson, but US law does as well. The Bush administration does not agree.

Legal Black Hole

Since flying over 700 people captured in Afghanistan, Bosnia, Pakistan, Egypt and other countries to Cuba, the government has argued that US courts do not have jurisdiction over the military base at Guantánamo Bay because it is not on US soil and because the detainees are not US citizens. Recognizing that US citizens on the base were in fact subject to the jurisdiction of federal courts, the military quickly whisked one detainee, Yaser Esam Hamdi, from Guantánamo Bay to a naval brig in Norfolk, Virginia and then to Charleston, South Carolina upon discovering that he may have US citizenship by right of birth.

Having locked the door to federal courts, the government has tried to avoid any international legal actions by arguing that the Geneva Conventions do not apply and that, even if they did, under Geneva those held at Guantánamo would be exempt. Government lawyers argue first that Geneva does not apply because al-Qaeda and Taliban fighters were not “high contracting powers” that could sign the conventions. Afghanistan was a failed state, and the international community (besides Pakistan, Saudi Arabia and the United Arab Emirates) did not recognize the Taliban as a state. Only states could sign the Geneva conventions; therefore Geneva did not apply to those in Afghanistan. Second, if Geneva did apply, [1] Article 3 of the Geneva Protocol for Prisoners of War (which governs the treatment of civilians or non-combatants) is not applicable because the war in Afghanistan is international and Article 3 refers to “conflict not of an international character.” Furthermore, al-Qaeda fighters in particular do not fit the definition of a soldier and therefore are not subject to prisoner of war status outlined in Article 4 of the conventions. Again, even if the Conventions did apply, the administration has argued that Geneva gives no rights that are actionable in US courts; rather the Conventions are international treaties between states. Finally, as a last recourse the administration argued that the president simply was not bound by Geneva. [2]

If the detainees do not have access to US courts and international treaties do not apply, then what law does apply to those detained at Guantánamo Bay? The government wants to argue that the Constitution gives the president the authority to sequester the detainees for as long as he deems necessary and to try them according to rules he creates -- in effect, that he has the right to create his own exclusive island of law. It is very important to note that the president claims the authority to detain people indefinitely, even without trial. Over the last three years, the detention facilities at the naval station have evolved from temporary cages into very permanent prisons. A scandal erupted in Washington in January 2005 when the Pentagon began talking about a new facility that was to hold people for the rest of their lives, though the government lacked any evidence against them. [3] The government argues that this absolute and unchecked authority to try and detain derives from the president's constitutional role as commander-in-chief, the Congressional authorization of the use of military force after the September 11, 2001 attacks and USC Section 836, a portion of the Uniform Military Code of Justice that gives the president the power to write rules for military commissions.

In fact, Section 836(a) of the Uniform Code of Military Justice does give the president the right to write trial procedures but these must, “so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” Military Order 1, however, states that “it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” Hence the order attempts to give the president and the Pentagon carte blanche to write new rules of trial that differ significantly from US law. The most significant deviations from US law that Military Order 1 institutes are the use of secret evidence that the accused cannot confront and the lack of due process, most significantly the checks of external judicial review on the process.

Why does the government fear US courts and why does the government not want to apply normal rules of evidence and due process? The government argues that the military necessities of the war on terrorism, which is like no other war, require the timely extraction and use of information in order to prevent further attacks and save lives. Normal rules of evidence, however, would exclude the use of any testimony extracted under coercion or in the absence of legal representation, so while valuable information might be revealed in interrogations, the process by which it was obtained would make it invalid in US courts. The Supreme Court ruled in 1927 and then again in 1964 that coerced evidence was not allowed in courts, not because coercion is morally repugnant but because such evidence is unreliable. Torture extracts what the interrogator wants to hear, not the truth. But the administration wrote new rules whereby information extracted under duress and without representation could be used to prosecute detainees in the military commissions. Furthermore, information obtained from the detainees might also be highly sensitive, the release of which could jeopardize military operations.

Therefore, in Guantánamo the accused would not even be able to see or hear such evidence against him in the commissions because, presumably, the accused could then somehow transmit this information from the world's most secure and isolated prison to the outside world and compromise the mission. The military lawyers assigned to defend the accused would be able to see the information but they would not be able to confer with the accused about such evidence. In normal circumstances, for example, of a trial of an accused spy, any classified information used in a trial is seen by the accused but the trial is closed to the public for purposes of security. The Guantánamo detainees were deemed so dangerous that the administration stipulated that they could not see the evidence against them if it is classified as secret. Here the Bush administration collapsed the traditional divide between intelligence work and law enforcement. The government had the right, they claimed, to hold people as long as they wanted for interrogations and then mete out a swift justice without the legal tangles of US courts or the interference of, in the words of new Attorney General Alberto Gonzales, the “quaint” niceties of the Geneva Conventions.

Civilian Habeas Challenges

Immediately upon the arrival of the detainees in Cuba, civilian lawyers opened the first salvo in what has become a running legal challenge. The challenges came first from civilian lawyers hired by the families of some of the detainees at the first camp, Camp X-Ray. The detainees filed habeas suits in federal court alleging variously wrongful detention, denial of due process under the Fifth Amendment to the Constitution, discrimination under the Fourteenth, and violation of international law and US military law. These petitions were denied in circuit court for lack of jurisdiction. The lower court rejections of the petitions were based upon a Supreme Court ruling in the case of Johnson v. Eisentrager (1950) in which German nationals tried by US military commissions for the war crime of aiding the Japanese in the period after the cessation of hostilities with Germany were tried and convicted in Nanking and imprisoned in occupied Germany. The Supreme Court denied habeas corpus in their case, saying that foreign nationals on foreign soil have no access to US courts.

It is true that the base is not on US soil. US forces took Guantánamo Bay in 1898 during the Spanish-American War. During the negotiations for the establishment of a formally independent Cuban government, the US leased land for a naval base and coaling station. This lease was later included in the infamous Platt Amendment, which was written into the Cuban constitution under duress and which governed US-Cuban relations until 1934. In 1934, under President Franklin Delano Roosevelt's “good neighbor” policy, the Platt Amendment was repealed, but the clause governing the naval base remained. The terms of lease and agreement stipulate that the US has complete jurisdiction and control and that both sides must agree before any changes are made to the terms. Since the rise of Fidel Castro, neither side agrees upon much of anything. Thus the treaty remains in force, though technically the US is now in violation of the agreement, which calls for a naval base and coaling station only. Castro has repeatedly asked the US to abandon the base. The Cubans have cut the base's water supply and refuse to allow new recruitment of labor in Cuba, though a handful of elderly Cubans still cross into the base to work. The base now has its own power plant and desalinization plant and is clearly divorced from anything Cuban.

In June 2004, however, the Supreme Court disagreed with the lower court's rejection of the petitions for lack of jurisdiction. In Rasul v. Bush , brought on behalf of 16 Australian, British and Kuwaiti detainees, the Supreme Court ruled that while ultimate sovereignty in Guantánamo lay with Cuba, the US had “complete jurisdiction and control” by the terms of the lease and thereby the courts had jurisdiction. Furthermore, in the Johnson v. Eisentrager case the Supreme Court had clearly outlined the conditions that led to their rejection of the habeas petitions of the German prisoners. These included the fact that the Germans had been tried in a competent court with representation. By contrast, the detainees at Guantánamo had no counsel and were facing no specified charges.

The court's ruling allowed the detainees to seek relief in federal courts, but in order to do so, the detainees needed to contact lawyers to file petitions on their behalf. In an almost comic gesture, the military passed out envelopes stamped with “attorney-client privilege” and gave detainees, who do not speak English much less have legal training even in their own countries, the address of the federal court building in Washington where they could send their petitions. The Bush administration has urged the courts to interpret the Rasul ruling very narrowly. In subsequent briefs, the government argues that the Supreme Court recognized the right of the detainees to petition the court -- thus the envelopes -- but in court the detainees still have no rights. [4] What rights the detainees do have is now to be determined through a series of cases that once again are winding their way to the Supreme Court, probably to be heard in the fall of 2005.

Military Commissions

Before the Supreme Court ruling on Rasul , however, a second legal attack on the Guantánamo detentions had commenced from an unlikely source. A year earlier, in the summer of 2003, the Pentagon announced that the first detainees to be tried before military commissions were charged with crimes and had been assigned lawyers. Six detainees -- two Yemeni, one Sudanese, one Australian and two British citizens -- were transferred into a special camp built to facilitate meetings between lawyers and detainees. Three of the detainees were immediately charged and four of the detainees were assigned military lawyers as required by the president's Military Order 1. The two remaining detainees, Feroz Abbasi and Moazzam Begg, were the British citizens and the announcement of their trial before a military commission in Guantánamo caused an immediate political storm for British Prime Minister Tony Blair. Blair was already under intense political pressure for supporting the US invasion of Iraq, and the idea that British citizens would be subject to the president's special law in Guantánamo was unacceptable to the public and politicians of all stripes in Britain. Blair clearly passed on the pressure to his friend in Washington and charges were never brought against either Abbasi or Begg. [5] In January 2005, the two were among four Britons released to British authorities and though they are not allowed to leave the country, they are free and do not face any charges in Britain, British intelligence having cleared them of any crimes.

The military lawyers of the remaining four detainees mounted an unexpected and spirited attack on the legality of the military commissions themselves. Though expressly forbidden by Military Order 1, Swift filed a petition in federal court in the state of Washington, seeking an order that would grant his client both charges and a speedy trial. The government motioned to have the case heard in the District of Columbia circuit court rather than in the state of Washington, which is in the liberal ninth circuit. The defense agreed to the transfer and, following the Rasul ruling, the petition was reentered as a habeas petition in the name of Hamdan himself. Hamdan's habeas petition asked that the military commissions be declared unlawful and that he be given a regular military court martial. In effect, the military defense lawyers argued to have the federal courts invalidate the military commissions as constituted by the Bush administration.

In an attempt to preempt the flood of lawsuits entering federal courts, the government opened the first hearings in the military commissions in Guantánamo in August 2004, more than two years after the detainees had arrived there. The government wished to show that justice was being served in Guantánamo and there was no need for intervention by federal courts. In the spotlight of global media, the hearings began with a massive show of military force -- presumably for the protection of the court from a single chained and shackled Yemeni and an Australian backwoodsman. The hearings opened with charges being read, an explanation of the detainee's rights to representation and then continued to motions and jury selection.

The proceedings were marked by several striking moments. When asked whether he understood his rights to representation, one detainee remarked that he did not think a trial in which the accused was not able to confront the evidence against him was a fair trial -- this from an admitted devotee of al-Qaeda. The weight of reason seemed continually to evade the government. The government was further embarrassed when the military lawyers examined the proposed panel in jury selection. Lawyers for the defense quickly discovered that this fair panel was more like an expert witness list. One member had been in charge of determining which detainees in Afghanistan were to be transferred to Guantánamo and a second had been an intelligence officer in Afghanistan. Finally, the defense lawyers unleashed a barrage of motions, based mostly upon the government's violations of due process and violations of international law, to dismiss charges against their clients. The military commissions came to a sudden halt in November, though, when Judge Robertson ruled favorably on Hamdan's petition.

Protecting Due Process

The government's legal case for Guantánamo received two more setbacks after Judge Robertson's ruling. The first came on January 31, 2005, when Judge Joyce Hens Green ruled that the military's Combatant Status Review Tribunal (CSRT) did not conform to the standard set by the Supreme Court in July of 2004 for a “neutral hearing” to determine the detainees' status in the camp. [6] The Supreme Court had held that detainees had a right to a neutral hearing to contest the basis of the determination of their status as enemy combatants. The case arose out of the petition of the father of Yaser Hamdi, an American-born citizen of Saudi Arabia who was detained by Northern Alliance forces in Afghanistan after the September 11 attacks. In the petition the father claimed that Hamdi was a relief worker who had only recently entered Afghanistan and who did not receive military training. On the basis of the testimony of a single intelligence officer, the government claimed that Hamdi was a combatant. Although a lower court ruled that Hamdi had the right to contest the evidence used to determine his status, the government prevailed on appeal. A final appeal by Hamdi's lawyers brought the case before the Supreme Court. In a plural decision, the court ruled that, though Congressional authorization for the use of military force gave the government the right to detain people, due process demands that “a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker.” [7]

The idea of the review board to determine a detainee's combatant status had first emerged in early 2003 after officials became frustrated with the slow pace of proceedings at Guantánamo, but it was the Supreme Court's rulings in July 2004 that spurred their formal creation. [8] The review tribunal was meant as an internal administrative review board, but after the court's ruling the Defense Department tried to pass these off as a “neutral hearing” as per Geneva's requirements. Apparently unable to grasp the significance of the Supreme Court rulings, however, or intentionally attempting to circumvent the logical consequences of the rulings, the review tribunal reproduced the same structural problems inherent in Military Order 1 and embedded in the detention camp itself.  

Prior to appearing before the review board, the detainee was given a “personal representative” not trained in the law from among the soldiers at Guantánamo. The proceedings began with a presumption in favor of the military's original determination of combatant status. Anything that the detainee said to this representative could and would be used against him, so the detainee had no incentive to talk to the representative. Nor did the “personal representative” have any mandate to look after the interests of the detainee. Military officers ran the hearings, secret evidence was used against the detainee and the deliberations were kept secret because the CSRT relied upon classified evidence in all cases. There were no rules of evidence. Hence, there was no chance for the detainee to question or determine the quality or nature of even the unclassified evidence, and in particular, to question if the evidence had been coerced. Finally, there was no chance of independent review. Under these circumstances, there was no incentive for the military to find anyone innocent and every incentive for them to find the detainees rightfully detained. In the end, only 38 of the more than 500 cases reviewed by the CSRT found the detainee improperly classified as “enemy combatants.” [9]  

A recently declassified transcript of the CSRT proceedings is instructive. In the case of a German national detained in Pakistan, both US and German intelligence, according to newspaper reports, cleared the detainee of any connection to terrorism, yet the CSRT panel relied upon an anonymous, unsupported note inserted in the detainee's file just before the CSRT proceedings to determine that the detainee was an enemy combatant to be detained indefinitely. [10] In court papers, the military officers said that the information upon which they based their decision was too sensitive to release to the public. Yet the declassified information showed that there was no evidence to support their decision. The CSRT presumed, just as Military Order 1 did, that the military had captured the guilty person and there was no need for due process or rules of evidence. If the detainee is in Guantánamo, they reasoned, he must have done something wrong. The CSRT reflects a reversal of normal presumptions of innocence until proven guilty, and a disregard for rules of evidence that maintain the credibility of evidence and limitations on the power of the state embodied in independent review of the judiciary.  

Judge Green ruled that the CSRT process contravened both Geneva and the Constitution. She found that Geneva does apply and that it does give rights to individuals that are actionable in court. As in the case of the habeas cases and the Constitution, the government tried to make a parallel argument on Geneva. They said that even if Geneva did apply, it did not give individuals rights that were actionable in court. Judge Green found otherwise; the Fifth Convention of Geneva does give detainees the right to a fair hearing to determine their status, a right that she upheld in her federal courtroom. Judge Green also ruled that the detainees were afforded rights under the Constitution and that the Fifth Amendment guaranteed due process for the detainees. She was particularly concerned with the possibility that coerced evidence was used that the detainee could not question. Judge Green found evidence of the possibility of torture at Guantánamo in press reports of current and former FBI interrogators. (Though not mentioned by Judge Green, it is also important to remember that many detainees were not captured by US forces, but by Afghan forces paid large sums as bounty for Arabs and Taliban. Thus the circumstances of their capture did not favor careful documentation of the capture nor any evidence. In fact, these circumstances give incentive to the fabrication of evidence for financial gain.) Finally, she argued that because the CSRT did not meet the Fifth Amendment requirement of due process, it did not satisfy Geneva's requirement of a fair hearing to determine status.

The government will appeal Judge Green's ruling, just as it has appealed the Hamdan ruling by Judge Robertson. Given the makeup of the appellate panel in the Hamdan case, a ruling in favor of the government is a strong possibility. But in either case, the losing side will appeal to the Supreme Court, which will likely hear the case and rule in late 2005. The Supreme Court, thus far, appears unwilling to play the government's game. The justices will likely extend the principles that underlie the rule of law in the United States to those held by the government in Guantánamo even though the detainees are non-citizens and outside of US territory.  

Ruling Against “Judicial Activism”

The most damning condemnation of the Bush administration's special law for Guantánamo came from a Bush appointee to the bench from South Carolina. On February 29, 2005, Judge Henry Floyd slammed the administration in what is the second round of the José Padilla case. In May 2002, Padilla was arrested in Chicago's O'Hare Airport by federal agents and then accused publicly of planning a “dirty bomb” attack, though he has never been formally charged with any crime. A month later, in June, the Pentagon claimed Padilla was an “enemy combatant” and put him in the naval brig in Charleston, South Carolina, where he was held in isolation and without access to counsel. Padilla's lawyer, hired while Padilla was in federal custody, acted on his own as Padilla's “next friend” and filed a habeas case claiming wrongful detention. The case went to the Supreme Court, where the justices sidestepped the major issues and sent the case back to lower court on a jurisdictional technicality: the lawyer for Padilla had filed in New York rather than in South Carolina where Padilla was being held.

After refiling the case in South Carolina in the fall of 2004, Padilla won in lower court before Judge Floyd, who said in no uncertain terms that the government was on the wrong side of the law : “The Court is of the firm opinion that it must reject the position posited by Respondent [the government]. To do otherwise would not only offend the rule of law and violate this country's constitutional tradition, but it would also be a betrayal of this Nation's commitment to the separation of powers that safeguards our democratic values and individual liberties. For the Court to find for the Respondent would also be to engage in judicial activism.” [11]

While Judges Robertson, Green and Floyd found the government's arguments lacking, Guantánamo Bay has clearly politicized the judiciary, as evidenced by Judge Richard Leon's ruling in January 2005. Whereas Judge Green had found the government's arguments “unconvincing,” and Judge Floyd found them “without merit,” Judge Leon, another Bush appointee who worked as a lawyer for Dick Cheney when he was a Congressman from Wyoming, agreed entirely with the government and conceded nothing to defense lawyers, to the extent that his opinion simply reiterated the government's briefs. Judge Leon ruled in the case of six Algerians and a Frenchmen that were captured by US forces in Bosnia and transported to Guantánamo. The plaintiffs, said Judge Leon, had no viable legal argument under federal law, the Constitution, international law or any treaty, in stark contrast to Judge Green who found viable legal theories under all of these.

The growing number of rulings and their sometimes contradictory results has prompted calls for expediting the cases to the Supreme Court in order to bring some clarity and direction to the politicized chaos now reigning in the lower courts. Hamdan's lawyers had attempted an early expedition to the Supreme Court in January 2005, but the justices rejected Hamdan's attorneys' attempt to bypass the appellate court. The Supreme Court clearly wanted to hear the opinions of the appellate court before ruling themselves, though given the politicized nature of even the appellate court on these issues, it is doubtful that it will be able to bring any legal clarity. Hence, while the government clearly lost the first round of arguments before the Supreme Court in the summer of 2004 in the Hamdi and Rasul cases, the government and its supporters in the judiciary have interpreted those rulings so narrowly that a new round of Supreme Court rulings are on the horizon for summer or fall of 2005.

The Future of Guantánamo

In the meantime, however, the government appears to be searching for other solutions to what has become a political thorn in the side of international relations and domestic politics. A second board created at Guantánamo is now evaluating the detainees using quite different criteria. Rather than questioning the work of the military and the legal status of the detainee, this administrative board is asked to consider whether the detainee represents a future threat to the United States, regardless of past actions. The expectation is that a large number of detainees will be released. Estimates are that close to 220 detainees have already been released, often with some kind of agreement with the home government of the detainee that the detainee will be either held or supervised by the home government. Most have simply been released. [12] In the case of Hamdi, for example, rather than try him as the Supreme Court had ordered, the government cut a deal whereby he renounced his US citizenship and he was deported to Saudi Arabia, where the Saudis promised to keep an eye on him. Another high-profile detainee, Mamdouh Habib, was released to the Australian government because the Australians demanded that their citizens either be tried before the military commission or released. The possibility of Habib taking the stand and revealing that he had been subjected to the US policy of “rendition” (by which the US had turned him over to the Egyptians for interrogation methods illegal in the United States) soured the government's taste for a trial. Thus Habib was released to the Australians, who set him free. [13] The British have also demanded and received all of their citizens, even Abbasi and Begg who had been held for trial before the military commission, and the British have released them all.

On the other hand, the government has built one maximum-security prison at Guantánamo Bay and has talked about building a medium-security facility, the “Camp Six” that spurred controversy when sources revealed it was designed for those against whom the government had no evidence against but whom the government wanted to hold indefinitely. These are both very permanent facilities.

The question being decided in the courts, it seems, is whether the flag flying above these facilities, and above the US military bases now scattered throughout the world, represents the currents of America's unsavory past of racial discrimination, slavery and genocide, echoed in the currents of hatred against Muslims harbored in significant quarters of the US, or whether the flag represents the American tradition of freedom embodied in the principles of rule of law, separation of powers and the due process guaranteed by the Constitution. The appellate court hearings on Hamdan's case and the other ongoing Guantánamo detainee cases are small but important battles in this larger struggle for the definition of what America represents.