Guantánamo (55 page)
Authors: Jonathan M. Hansen
The Court's ruling in
Rasul
was notable for several reasons. First, by appearances, anyway, John Yoo had lost. He had warned that a federal court
might
side with a challenge to Bush policy, but he certainly didn't expect that to happen. Second, Justice John Stevens, who wrote the majority opinion arguing that the United States was de facto sovereign at Guantánamo Bay, hence habeas applied there, was the same person who had earlier denied constitutional protections to Haitian migrants detained at Guantánamo in the 1990s.
117
What had changed over the intervening decade? Both the magnitude of the assertion of presidential power and its potential repercussions. “What is presently at stake,” Stevens wrote in
Rasul
, “is only whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” To this question, the majority offered a resounding yes.
Rasul
was notable for several reasons. First, by appearances, anyway, John Yoo had lost. He had warned that a federal court
might
side with a challenge to Bush policy, but he certainly didn't expect that to happen. Second, Justice John Stevens, who wrote the majority opinion arguing that the United States was de facto sovereign at Guantánamo Bay, hence habeas applied there, was the same person who had earlier denied constitutional protections to Haitian migrants detained at Guantánamo in the 1990s.
117
What had changed over the intervening decade? Both the magnitude of the assertion of presidential power and its potential repercussions. “What is presently at stake,” Stevens wrote in
Rasul
, “is only whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” To this question, the majority offered a resounding yes.
Still, the Court was vague on exactly what form of relief should be granted the detainees. “Whether and what further proceedings may become necessary after respondents make their response to the merits of petitioners' claims are matters that we need not address now,” the Court ruled, thereby passing the buck. The Bush administration was only too happy to seize back the initiative.
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Within days, the administration announced the establishment at Guantánamo of Combatant Status Review Tribunals (CSRTs), three-judge panels empowered to review the government's evidence against a detainee and make a recommendation to continue to detain or release him. In these tribunals, detainees had no right to counsel, but were provided with military “advisors.” Nor were they allowed to review the evidence against them. More troubling, in constituting the
CSRTs, the government expanded its definition of what it meant to be an “enemy combatant.” In
Rasul
, the government described an enemy combatant as someone who “was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in armed conflict with the United States there”; post-
Rasul
, the government significantly broadened that definition to include “an individual who was part of or supporting Taliban or al Qaeda forces,” including “any person who has committed a belligerent act or has directly supported hostilities in aid of enemies.”
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CSRTs, the government expanded its definition of what it meant to be an “enemy combatant.” In
Rasul
, the government described an enemy combatant as someone who “was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in armed conflict with the United States there”; post-
Rasul
, the government significantly broadened that definition to include “an individual who was part of or supporting Taliban or al Qaeda forces,” including “any person who has committed a belligerent act or has directly supported hostilities in aid of enemies.”
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The potential for and evidence of abuse in this system is limitless. In 2009, D.C. District judge Kollar-Kotelly, who originally denied habeas corpus to Guantánamo detainees back in July 2002, reviewed the case of a Kuwaiti detainee named Fouad Mahmoud al-Rabiah and held at Guantánamo for seven years. The government's evidence against al-Rabiah was “surprisingly bare,” Kollar-Kotelly remarked. The man had been held on the basis of a coerced confession that his interrogators acknowledged as dubious, and which the judge herself dismissed as “entirely incredible.” Indeed, evidence in the detainee's record, which he was not allowed to see, “strongly supports” his claim of innocence. The judge saw “no evidence in the record that anyone directed any allegations toward al-Rabiah nor any indication that interrogators believed al-Rabiah had engaged in any conduct that made him lawfully detainable.” Rather, “the evidence in the record during this period consists mainly of an assessment made by an intelligence analyst that al-Rabiah should not have been detained.”
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Examples of such corruption abound. Lieutenant Colonel Stephen Abraham, who sat on the CSRTs for eight months, described the system as “geared towards rubber-stamping the detainees' prior designation as âenemy combatants.'” As elsewhere throughout the Bush team's national security apparatus, the officials charged with compiling the evidence against detainees were “woefully inexperienced” in “the legal and intelligence fields.” The same was true of the tribunals' recorders, true of the case writers, and so on. Detainees were held on the basis of charges that “lacked even the most fundamental earmarks of objectively credible evidence,” Abraham observed. Detainees' files consisted of statements made in “indirect and passive forms without stating the source of the information or providing a basis for establishing the reliability
or the credibility of the source.” Judgments against detainees were often based on evidence that could not withstand “even the most cursory questions.” Judgments in favor of detainees were typically reviewed and overturned, and greeted with the assumption that things had gone wrong. Among the evidence keeping numerous detainees confined at Guantánamo Bay was that provided by one Guantánamo captive, under duress, who claimed to have seen up to sixty of his fellows detainees in Afghanistan when they were in fact known to be elsewhere.
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or the credibility of the source.” Judgments against detainees were often based on evidence that could not withstand “even the most cursory questions.” Judgments in favor of detainees were typically reviewed and overturned, and greeted with the assumption that things had gone wrong. Among the evidence keeping numerous detainees confined at Guantánamo Bay was that provided by one Guantánamo captive, under duress, who claimed to have seen up to sixty of his fellows detainees in Afghanistan when they were in fact known to be elsewhere.
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Convinced by Bush administration propaganda that the CSRT system was humming merrily alongâthat Guantánamo held only the worst of the worst and that even these
worst
were being handsomely fed and cared forâthe Republican-majority Congress passed the Detainee Treatment Act (DTA) in December 2005. The act banned the use of cruel, inhuman, and degrading treatment while stripping U.S. courts of habeas jurisdiction at Guantánamo Bay. Early the next year, the U.S. Supreme Court heard a challenge to the DTA's revocation of federal court authority at Guantánamo. For the second time in two years, the government lost, as the High Court rebuffed the other branches' assault on judicial authority. Moreover, the Court's decision in
Hamdan v. Rumsfeld
restored Geneva protections to Guantánamo Bay, upholding the plaintiff 's challenge to the military commission system established there.
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worst
were being handsomely fed and cared forâthe Republican-majority Congress passed the Detainee Treatment Act (DTA) in December 2005. The act banned the use of cruel, inhuman, and degrading treatment while stripping U.S. courts of habeas jurisdiction at Guantánamo Bay. Early the next year, the U.S. Supreme Court heard a challenge to the DTA's revocation of federal court authority at Guantánamo. For the second time in two years, the government lost, as the High Court rebuffed the other branches' assault on judicial authority. Moreover, the Court's decision in
Hamdan v. Rumsfeld
restored Geneva protections to Guantánamo Bay, upholding the plaintiff 's challenge to the military commission system established there.
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Again Congress tried to limit federal judicial authority at Guantánamo by passing the Military Commissions Act in October 2006. Again, its attempt was rebuffed by the Supreme Court, this time in July 2008, just months before the presidential election, when, in
Boumediene v. Bush
, the Court upheld the habeas petitions of six supposed enemy combatants. As D.C. District Court judge Richard J. Leon remarked, when the case was remanded to him, the six petitioners whose detainee status was in question were no ordinary captives. Native Algerians, all were citizens or lawful residents of Bosnia at the time of their apprehension by American officialsâ“over a thousand miles away from the battlefield in Afghanistan”âfor allegedly planning to travel to Afghanistan and take up arms against the United States. What was the evidence against them? Judge Leon couldn't exactly say. He did allow that “the Government relies exclusively on the
information contained in a classified document from an unnamed source,” a source, he pointedly remarked, that “is the only evidence in the record directly supporting each alleged detainee's knowledge of, or commitment to, this supposed plan.” The government provided the Court no information by which to judge the source's credibility or reliability. Nor did it provide any corroborating evidence. Generously, Leon conceded that though the classified intelligence speaking to the credibility of the source may indeed have been “sufficient for intelligence purposes,” it was insufficient “for the purposes for which a habeas court must now evaluate it. To allow enemy combatancy to rest on so thin a reed,” he concluded, “would be inconsistent with this Court's obligation under the Supreme Court's decision in
Hamd
[
an
] to protect petitioners from the risk of erroneous detentionӉthe inspiration for habeas itself.
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Boumediene v. Bush
, the Court upheld the habeas petitions of six supposed enemy combatants. As D.C. District Court judge Richard J. Leon remarked, when the case was remanded to him, the six petitioners whose detainee status was in question were no ordinary captives. Native Algerians, all were citizens or lawful residents of Bosnia at the time of their apprehension by American officialsâ“over a thousand miles away from the battlefield in Afghanistan”âfor allegedly planning to travel to Afghanistan and take up arms against the United States. What was the evidence against them? Judge Leon couldn't exactly say. He did allow that “the Government relies exclusively on the
information contained in a classified document from an unnamed source,” a source, he pointedly remarked, that “is the only evidence in the record directly supporting each alleged detainee's knowledge of, or commitment to, this supposed plan.” The government provided the Court no information by which to judge the source's credibility or reliability. Nor did it provide any corroborating evidence. Generously, Leon conceded that though the classified intelligence speaking to the credibility of the source may indeed have been “sufficient for intelligence purposes,” it was insufficient “for the purposes for which a habeas court must now evaluate it. To allow enemy combatancy to rest on so thin a reed,” he concluded, “would be inconsistent with this Court's obligation under the Supreme Court's decision in
Hamd
[
an
] to protect petitioners from the risk of erroneous detentionӉthe inspiration for habeas itself.
123
Â
In 2006, a lawyer familiar with the desolation and helplessness of death row had this to say about the Guantánamo prison camp: “I have been to death row in Texas, South Carolina, Missouri, Mississippi, Arkansas, and Indiana (the last being the site of the federal death row). I have been to more maximum-security prisons than I can recall. I have delivered the saddest news to men and women behind barsâparents have passed, children have been diagnosed, appeals have been denied. I have broken the news that a client's last chance for a reprieve has been turned down and his execution has been scheduled for a date in the near future. I have visited with clients late at night, in holding cells near execution chambers. Some paced nervously, others sat with a quiet dignity and peace. I have, only once, watched as a client of many yearsâa sixty-two-year-old great-grandmotherâwas put to death. But I have never been to a more disturbing place than the military prison at Guantánamo Bay. It is a place of indescribable sadness, where the abstract enormity of âforever' becomes concrete:
this
windowless cell;
that
metal cot;
those
steel shackles.”
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this
windowless cell;
that
metal cot;
those
steel shackles.”
124
This description of the prison contrasts markedly with an account of the base from the early 1970s: “What is it about Guantánamo that makes it everybody's favorite, longed-for duty station? Perhaps it is one of those rare places in the world that seems to exist in everybody's
dream vocabulary. Guantánamo evokes visions of a long-ago and faraway sort of place, a languid Caribbean paradise where the waves break on pristine beaches, and where the islanders shake down coconuts from trees when they want something to eat. Guantánamo today combines the nostalgia of the past with the adventure of a busy, growing naval base. There is just no place like it in the world.”
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dream vocabulary. Guantánamo evokes visions of a long-ago and faraway sort of place, a languid Caribbean paradise where the waves break on pristine beaches, and where the islanders shake down coconuts from trees when they want something to eat. Guantánamo today combines the nostalgia of the past with the adventure of a busy, growing naval base. There is just no place like it in the world.”
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No place like it in the world
. If not exactly true, this mythical Guantánamo, this “dream,” remained authoritative really for centuries, until the Bush administration decidedâagainst expert adviceâto locate its prison camp there in the War on Terror. Since the TaÃno cacique Hatuey first fled to Guantánamo from Hispaniola, Guantánamo had been a refuge for dispossessed individuals and groups. For the TaÃno themselves, for the displaced New Englander John Drake (Admiral Vernon's prized guide), for French refugees from Haiti, for Cuba's founding fathers, for Fidel Castro (and Castro's enemies), and yes, even for Haitians with AIDS virtually imprisoned there in the 1990s, Guantánamo remained a land of second chance, a springboard that brought visitors to the bay a step closer to their dreams. Pirates once flocked there. American colonists turned U.S. imperialists called for its seizure. Once seized, Guantánamo became the supposed embodiment of the American Dream.
. If not exactly true, this mythical Guantánamo, this “dream,” remained authoritative really for centuries, until the Bush administration decidedâagainst expert adviceâto locate its prison camp there in the War on Terror. Since the TaÃno cacique Hatuey first fled to Guantánamo from Hispaniola, Guantánamo had been a refuge for dispossessed individuals and groups. For the TaÃno themselves, for the displaced New Englander John Drake (Admiral Vernon's prized guide), for French refugees from Haiti, for Cuba's founding fathers, for Fidel Castro (and Castro's enemies), and yes, even for Haitians with AIDS virtually imprisoned there in the 1990s, Guantánamo remained a land of second chance, a springboard that brought visitors to the bay a step closer to their dreams. Pirates once flocked there. American colonists turned U.S. imperialists called for its seizure. Once seized, Guantánamo became the supposed embodiment of the American Dream.
By the end of his term in office, George W. Bush, along with his second secretary of defense, Robert Gates, couldn't shed Guantánamo fast enough. Of course, the Guantánamo they wanted to shed was the prison, not the naval base. But whether the base itself can survive the sullying of its name is anybody's guess. More than a century after the Teller Amendment formally pledged the United States to leave Cuba to Cubans, the
Boumediene
decision virtually conceded title to Guantánamo Bay to the United States. Only now nobody seems to want it.
Boumediene
decision virtually conceded title to Guantánamo Bay to the United States. Only now nobody seems to want it.
The history of the Guantánamo naval base exposes a fundamental paradox at the heart of American national identity between liberty and coercion. Domestically the paradox has been most visible in the interdependence of freedom and slavery, Manifest Destiny, and the dispossession of native peoples; internationally the paradox is starkest in the enduring vision of America as an empire of liberty, first described by Thomas Jefferson. Today this paradox plays out across the front pages of newspapers around the world, but there is nothing new about it at Guantánamo Bay. The United States intervened in the Cuban War of Independence in 1898 for the avowed purpose of ending Spanish tyranny. Its refusal to relinquish Guantánamo at the end of what Americans know as “the Spanish-American War” led Cubans to protest that they had exchanged one tyrant for another. Americans, meanwhile, bristled at Cuba's ingratitude, as if their selflessness demanded a reward.
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Despite its own beginnings as a cluster of colonies, the United States has been an expansionist, imperialist nation from its inception. The occupation of Guantánamo in 1898 fulfilled a yearning for an American foothold in Cuba dating back to the colonial era. Guantánamo was the first fruit of a harvest of territories, resources, and markets thought to be essential to U.S. prosperity and to the liberal democratic principles prosperity guaranteed. Guantánamo paved the way for the opening to U.S. business interests in Guatemala, Honduras,
and Nicaragua, among other Latin American states, as well as the seizure and administration of the Panama Canal Zone. The taking of Guantánamo initiated the United States into an exclusive, if notorious, club of imperialist superpowers, and established a blueprint for American foreign policy lasting to this day. Conflating the expansion of national interest with the advance of freedom and democracy, the United States has intervened repeatedly in the affairs of sovereign nations, often against the express wishes of local popular majorities. Justifying these interventions politically and legally has not always been easy, and for over a century Guantánamo provided the laboratory and staging area where U.S. imperial ambition could be implemented beyond the scrutiny of the American public and the constraint of U.S. law.
and Nicaragua, among other Latin American states, as well as the seizure and administration of the Panama Canal Zone. The taking of Guantánamo initiated the United States into an exclusive, if notorious, club of imperialist superpowers, and established a blueprint for American foreign policy lasting to this day. Conflating the expansion of national interest with the advance of freedom and democracy, the United States has intervened repeatedly in the affairs of sovereign nations, often against the express wishes of local popular majorities. Justifying these interventions politically and legally has not always been easy, and for over a century Guantánamo provided the laboratory and staging area where U.S. imperial ambition could be implemented beyond the scrutiny of the American public and the constraint of U.S. law.
Perched astride the Windward Passage, the strategic hub of the Western Hemisphere that cuts between Cuba and Haiti, Guantánamo has witnessed contests for local, regional, and global supremacy that date back centuries and have involved many of the world's great empires. Cuba figured centrally in European colonial competition, and Guantánamo Bay, with its deep and spacious harbor, could not help but become embroiled. Columbus left it to his successors to exploit the bay, though more as a harbor than as a home, as a lack of freshwater precluded intensive settlement for those without the means and manpower to tap neighboring resources. At once a vast anchorage and a warren of coves and inlets, Guantánamo became a favorite hideout of the legendary pirates of the Spanish Main who preyed (often with state sanction) on the merchant fleets of rival colonial powers. We may never know for sure who the first North American was to set eyes on the bay, but American colonists attended the successful British assault on Guantánamo of 1741. Thereafter Americans would keep Guantánamo closely in sight, constrained by exigency if not etiquette from intervening in Cuba's protracted battle for independence until the USS
Maine
blew up in Havana Harbor in early 1898. Logic, never mind the evidence, contradicted U.S. accusations that Spain had sunk the
Maine
. Spain had sought to avoid war with the United States at all costs. But logic was out of favor in an America bent on war and besotted with the propaganda of the Yellow Press. And so the war came, and with it, the happy coincidence of Guantánamo Bay.
Maine
blew up in Havana Harbor in early 1898. Logic, never mind the evidence, contradicted U.S. accusations that Spain had sunk the
Maine
. Spain had sought to avoid war with the United States at all costs. But logic was out of favor in an America bent on war and besotted with the propaganda of the Yellow Press. And so the war came, and with it, the happy coincidence of Guantánamo Bay.
The ensuing U.S. century at Guantánamo has consisted of periods of relative calm punctuated by fierce activity and hasty adaptation to unfolding global crises. The quiet and underused coaling station from which the United States strode triumphantly onto the global stage at the turn of the twentieth century scarcely resembled the boisterous depot to which the fleet repaired for fuel and refreshment during Prohibition. Prohibition-era Guantánamo, in turn, little resembled the base at which Batista's pilots refueled in their battle against the Cuban resistance. Nor did the Guantánamo that accommodated Batista in 1958 much resemble that dangled by Kennedy in an attempt to bait Castro into war just a few years later. Finally, Kennedy's Guantánamo differed markedly from the Guantánamo of presidents Carter and Reagan, which appeared so outdated by the 1970s and '80s that both men contemplated returning the base to Cuba. Only in the past decade or so has Guantánamo's role begun to stabilize. Guantánamo has become the place to hold refugees (more than eighty-five thousand Cubans and Haitians under the Bush and Clinton administrations in the 1990s) and prisoners of warâa never-never land within U.S. jurisdiction yet beyond the rule of law.
The American record at Guantánamo captures but half the story of the bay. Guantánamo Bay is part of Cuba, after all, and the U.S. century has a Cuban counterpart. A popular navy myth suggests that U.S.-Cuban relationsâboth in general and at Guantánamo in particularâremained healthy, cordial even, until Cuba's Communist revolution of 1959. The cordiality is said to have been palpable in the social interaction in the towns around the bay where Cuban and American navy bands sat shoulder to shoulder on holidays, and where American sailors unwound, innocently enough, when the fleet came in. Cubans know a different story. If there is one thing that unites diverse Cubans to this day, it is their shame at having consented to the U.S. occupation of Guantánamo in 1901. Nor are the many Cubans who labored at the base over the course of the U.S. century the free marketeers of American mythology. Hailing from an imperfect Cuba, they experienced American imperfectionsâexploitative labor conditions; gender, racial, and ethnic biasâfirsthand. Long after New Deal legislation began to protect workers in the United States, Cuban labor on the base remained unorganized and unrepresented. Against this
exploitation Cuban workers fought relentlessly, sometimes successfully, grateful for the work no doubt, but mindful of the coercion symbolized by America's presence at the bay.
exploitation Cuban workers fought relentlessly, sometimes successfully, grateful for the work no doubt, but mindful of the coercion symbolized by America's presence at the bay.
Â
But so much for history; what does the future hold? In June 2006, retired U.S. Army general Barry McCaffrey visited the Guantánamo prison camp at the invitation of the United States Southern Command (SOUTHCOM). A former head of SOUTHCOM (1994â96), now an adjunct professor of international affairs at the U.S. Military Academy, McCaffrey knew the naval base intimately. The purpose of the visit was to generate support for the camp just as Congress set to work on what would become the 2006 Military Commissions Act. For two days McCaffrey toured the camp, attended numerous briefings, and observed a detainee interrogationâmore or less the standard itinerary granted U.S. dignitaries and journalists.
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2
Much of McCaffrey's report recapitulated Joint Task Force (JTF) talking points. “The JTF Guantánamo Detention Center is the most professional, firm, humane and carefully supervised confinement operation that I have ever personally observed,” McCaffrey remarked. But not all of McCaffrey's report was boilerplate. The four-star general could barely conceal his contempt for politicians who (“with no military experience and no kids in uniform”
3
) had jeopardized the physical and emotional well-being and legal standing of U.S. troops. Years before Susan Crawford, convening authority for the Guantánamo military commissions, admitted that “we tortured Al Qahtani,” McCaffrey conceded that “during the first 18 months of the war on terror there were widespread, systematic abuses of detainees under U.S. control in Iraq, Afghanistan, and Guantánamo. Some were murdered and hundreds tortured or abused.”
4
The result was “enormous damage” both to U.S. military operations and to the nation's international reputation.
5
3
) had jeopardized the physical and emotional well-being and legal standing of U.S. troops. Years before Susan Crawford, convening authority for the Guantánamo military commissions, admitted that “we tortured Al Qahtani,” McCaffrey conceded that “during the first 18 months of the war on terror there were widespread, systematic abuses of detainees under U.S. control in Iraq, Afghanistan, and Guantánamo. Some were murdered and hundreds tortured or abused.”
4
The result was “enormous damage” both to U.S. military operations and to the nation's international reputation.
5
Given the prison's continuing notoriety, McCaffrey concluded that Guantánamo had suffered a mortal blow. “There is now no possible political support” for the prison “going forward.” Nor could the U.S. military expect much from the base. “The great value of the platform
of Guantánamo was that it was a military space in which no Federal District Court had primary jurisdiction,” McCaffrey explained.
of Guantánamo was that it was a military space in which no Federal District Court had primary jurisdiction,” McCaffrey explained.
For that reason alone, Gitmo has over the past 45 years been the location of choice for U.S. migrant refugee operations (no appeal to the INS process) as well as other secret operations. No applicable foreign law, no foreign diplomatic intervention, no Federal Court civil orders, no nosy intervention by a U.S. Ambassadorâonly the exercise of unilateral U.S. military power and the tool of the Uniform Code of Military Justice. It was the perfect deal. No more.
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Yet five years after McCaffrey's visit, the Guantánamo prison camp is alive and well. The prison enjoys more public and political support today than at any time in its nearly ten-year history, notwithstanding President Obama's campaign pledge and inaugural promise to shut it down. In poll after poll taken over the course of the two years since Obama took office, the American public has overwhelmingly rejected the idea of closing the prison and transferring its population stateside, most recently in December 2010.
7
That same month, a Democratic Congress dealt a near-fatal blow to the administration's effort to close the prison by prohibiting the president from transferring detainees to the United States, from buying or constructing a prison on U.S. soil for the Guantánamo detainees, and from repatriating detainees without the signature of the secretary of defenseâprovisions enacted without parliamentary debate and virtually without public notice.
8
7
That same month, a Democratic Congress dealt a near-fatal blow to the administration's effort to close the prison by prohibiting the president from transferring detainees to the United States, from buying or constructing a prison on U.S. soil for the Guantánamo detainees, and from repatriating detainees without the signature of the secretary of defenseâprovisions enacted without parliamentary debate and virtually without public notice.
8
Meanwhile, anticipating Congress's vote, the administration tried to make the best of a bad situation, assigning a legal team to address the most intractable issue confronting Justice Department officials, namely, what to do with the nearly fifty or so detainees considered too dangerous to release and yet thought to be unsuitable for trial by military tribunal, thanks to tainted evidence against them. To make indefinite detention more palatable, the administration will replace Bush administration “annual review boards” with “periodic review boards.” Where the old boards consisted entirely of military personnel and provided the detainees no legal rights, the new ones will consist of an
interagency panel of military and national security personnel, and will grant detainees both legal counsel and access to at least some incriminating evidence.
9
interagency panel of military and national security personnel, and will grant detainees both legal counsel and access to at least some incriminating evidence.
9
Which raises the question of whether these changes are adequate for alleged enemy combatants detained in wartime. By all appearances, the torture and systematic abuse of detainees ended at Guantánamo long before Barack Obama took office. Indefinite detention continues there, but its legality has never been questioned by a single federal judge, liberal or conservative, and closing Guantánamo would only displace it to the United States. Moreover, the military commission system signed into law by the 2009 Military Commissions Act and now set to reopen at Guantánamo includes more protectionsâmore judicial review, more limitations on coerced and hearsay evidenceâthan any prior military commissions, including Nuremburg.
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In short, one could argue that the Obama administration is only finishing the job begun at Guantánamo by JAG lawyers, human rights advocates, and the press, who have introduced a measure of law and transparency to what has long been an obscure place. Moreover, closing Guantánamo might inadvertently allow both the administration itself and the American public to sidestep the bigger question of how Guantánamo fits into the nation's larger detention archipelago. It is worth remembering that momentum began to build for closing Guantánamo just as escalating military engagement in Afghanistan and Pakistan swelled the ranks of detainees at Bagram air base and other detention centers beyond the purview of the American public and the reach of U.S. law. What is happening at Bagram? Where else is the United States detaining people? Under what conditions and for how long? The war against al Qaeda and the Taliban continues, but there have been no new arrivals at Guantánamo Bay.
And so a place that has come to symbolize America's fall from grace post-9/11 now demonstrates the power of symbols themselves to inhibit clear thinking. “The uproar over Guantánamo permits conflation of a whole congruence of ideas,” observes David Barron, former head of the Office of Legal Council in the Obama administration. “It reveals how a set of practices, some of which may be more acceptable than others, became impossible to disentangle in our minds.”
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Meanwhile, the more things change, the more things stay the same.
In February 2011, just as the new Guantánamo military commissions were set to restart, a detainee named Awal Gul died of a heart attack at the prison camp. Guantánamo officials described Gul as “an admitted Taliban recruiter and commander of a military base in Jalalabad.” Gul's lawyer, Matthew Dodge, characterized that description as an “outrageous” slander. In three years of litigation, Dodge protested, the U.S. “government never claimed or pointed to any evidence that his client had run any Qaeda house or admitted providing support to Mr. bin Laden.”
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A few weeks later, President Obama defended what seemed to many observers to be the U.S. military's abusive treatment of Bradley Manning, the marine accused of leaking classified documents to WikiLeaks' founder, Julian Assange. Asked to explain why military officials thought it necessary to require Manning to sleep naked and appear nude before his guards, the president replied, “I have actually asked the Pentagon whether or not the procedures that have been taken in terms of [Manning's] confinement are appropriate and are meeting our basic standards. They assure me that they are.”
13
In February 2011, just as the new Guantánamo military commissions were set to restart, a detainee named Awal Gul died of a heart attack at the prison camp. Guantánamo officials described Gul as “an admitted Taliban recruiter and commander of a military base in Jalalabad.” Gul's lawyer, Matthew Dodge, characterized that description as an “outrageous” slander. In three years of litigation, Dodge protested, the U.S. “government never claimed or pointed to any evidence that his client had run any Qaeda house or admitted providing support to Mr. bin Laden.”
12
A few weeks later, President Obama defended what seemed to many observers to be the U.S. military's abusive treatment of Bradley Manning, the marine accused of leaking classified documents to WikiLeaks' founder, Julian Assange. Asked to explain why military officials thought it necessary to require Manning to sleep naked and appear nude before his guards, the president replied, “I have actually asked the Pentagon whether or not the procedures that have been taken in terms of [Manning's] confinement are appropriate and are meeting our basic standards. They assure me that they are.”
13
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