Guantanamo Bay is the subject of continuous debate.  Can the United States detain indefinitely members of the Taliban captured in Afghanistan, or Al Qaeda insurgents captured in Iraq, at our military base in Cuba?  What sort of interrogation measures are permissible by international law in order to obtain information to protect Americans from the continuing threat of terrorism?  What rights, under international law and treaties, are the detainees entitled to?  No one knows the answers to any of these questions, because they are matters of first impression.  We have never been engaged in a struggle quite like this one; we have no treaties with the terrorists; and, while particular protocols, such as the Geneva Conventions, govern the treatment of prisoners of war declared by sovereign countries, there is no authoritative pronouncement from the U.S. Supreme Court regarding treatment of the Gitmo detainees.  Some lower courts have suggested that the detainees are entitled to some form of “due process,” but no one knows precisely what that means.

As might be expected, given that some of the detainees were bound, sooner or later, to find legal counsel and bring lawsuits, the Bush administration has been fairly careful, as events in wartime go.  The detainees appear to have food of at least as high a quality as the soldiers who are their caretakers; they are allowed to keep copies of the Koran; they have medical treatment available; and, apparently, none have yet died as a result of their treatment in captivity.  Commentator Michelle Malkin reported that “[e]very single detainee currently being held at Guantanamo Bay has received a hearing before a military tribunal,” where detainees may contest the facts on which their classifications as “enemy combatants” are based.  “As a result of those hearings,” according to Malkin, “more than three dozen Gitmo detainees have been released.”  These status hearings are apparently comparable to the requirements of the Geneva Conventions and appear to be fully consistent with the Supreme Court’s recent Hamdi v. Rumsfeld decision, which held that, in the case of U.S. citizens detained in military custody, due-process requirements, such as hearings and an opportunity to contest one’s detention, must be provided.  This is probably more than any other similarly situated country has done to secure the rights of her sworn fanatical enemies.

Still, the critics of the Bush administration’s conduct have not been mollified.  In the most interesting instance, the senior senator from Illinois, Richard Durbin, took to the Senate floor on June 14 to read from what he claimed was an account of interrogation at Gitmo recorded by an FBI agent.  Some detainees had been shackled, the agent reported; sometimes, the air-conditioning was turned off, rendering cells too hot, and sometimes it was turned up, rendering them too cold; rap music was played incessantly to soften up detainees to get information out of them.  In words that he soon came to regret, Durbin declared: “If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulag, or some mad regime—Pol Pot or others—that had no concern for human beings.  Sadly . . . this was the action of Americans in the treatment of their prisoners.”  Durbin proceeded to call for an investigation.

Instead of launching an investigation, however, the senator’s comments ignited a firestorm.  The obvious points were gleefully made by Republicans: Hitler, Stalin, and Pol Pot had killed tens of millions, and this doesn’t exactly compare with turning the air-conditioning on and off.  Durbin also touched the rhetorical third rail in American ethnic politics, since no one is now permitted to invoke the holocaust except to protest the holocaust.  After Chicago’s Mayor Richard Daley (one of the few sensible moderate voices in the Democratic Party) castigated Durbin for his Nazi comparison, and after a week of refusing to back down, Durbin went back to the Senate floor and did the requisite tear-filled, voice-choking, crow-consuming apology.

Wholly apart from the problem of whether there is any law that governs what we do in terrorist detentions, and whether what we are doing is necessary in a struggle of this kind, it does appear that the President’s critics have yet to find an acceptable critical political vocabulary to analyze the War on Terror.