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Guantánamo: Ten Years and Counting

by David Cole

The Nation
January 4, 2012 (This article appeared in the January 23,
2012 edition of The Nation)

http://www.thenation.com/article/165443/guantanamo-ten-years-and-counting

On January 11 it will have been a decade since the first of
the men we once called "the worst of the worst" were brought
to Guantánamo Bay, a location handpicked by the Bush
administration so that it could detain and interrogate
terror suspects far from the prying eyes of the law. In the
intervening years much has improved at this remote US-
controlled enclave in Cuba. Allegations of ongoing torture
have ceased; the detainees have access to lawyers and court
review; and more than 600 of the 779 men once held there
have been released.

But in another way, Guantánamo is a deeper problem today
than it ever was. No longer a temporary exception, it has
become a permanent fixture in our national firmament. And
although at one time we could blame President George W.
Bush's unilateral assertions of unchecked executive power
for the abuses there, the continuing problem that is
Guantánamo today is shared by all three government branches,
and ultimately by all Americans. With President Obama's
signing of the National Defense Authorization Act (NDAA) on
New Year's Eve, the prison is sure to be with us - and its
prisoners sure to continue in their legal limbo - for the
indefinite future.

President Bush undoubtedly committed the original sin. Had
he followed the rules governing wartime detention from the
outset, Guantánamo would not be an international
embarrassment. It has long been established that in an
ongoing war a country may detain the enemy for the
conflict's duration. But the laws of war require that we
afford hearings to those whose status is in doubt, that we
release them when the conflict ends and that we treat them
humanely throughout. Bush refused to provide hearings,
asserted the prerogative to hold people during a never-
ending "war on terror" and authorized systematic cruel and
inhuman treatment. For years, Guantánamo was synonymous with
Bush's defiantly lawless approach to the "war on terror."

But we can no longer point the finger only at Bush. He's
been out of office for three years, and Guantánamo is still
very much with us. Congress, with the support of many
Democrats, has adopted a shortsighted "not in my backyard"
attitude, making it impossible for President Obama to
deliver on his promise to close Guantánamo. In provisions
recently renewed in the NDAA, Congress has barred any
transfer of Guantánamo detainees to a US prison, even for
criminal trial, and radically restricted the president's
authority to transfer detainees to foreign countries,
essentially requiring impossible guarantees that they won't
ever pose a threat to the United States. As a result, even
though more than half of the remaining detainees - eighty-
nine of 171 - have been fully cleared for release by a joint
review conducted by the military, CIA, FBI and the
Department of Homeland Security, they remain stuck there.
Locking up people we concede need not be held is the very
definition of arbitrary detention, but that has become the
norm at Guantánamo.

The courts are also implicated. The Supreme Court twice
sought to ensure that Guantánamo would be subject to law. In
2004, in a case brought by the Center for Constitutional
Rights, which almost no one thought could be won, the Court
ruled that the detainees had a statutory right to challenge
the legality of their detentions by filing writs of habeas
corpus. When Congress repealed the statutory basis for that
decision, the Court in 2008 held that the detainees had a
constitutional right to seek judicial review - the first
time the Court had extended constitutional rights to foreign
nationals outside our borders.

But the Court left the details to be worked out by the lower
courts, and because all habeas cases must be filed in the
District of Columbia, the Court of Appeals for the DC
Circuit - the very court the Supreme Court overturned in its
habeas rulings - must hear all appeals in the Guantánamo
cases. In a series of decisions that come close to echoing
the South's resistance to the 1954 Brown v. Board of
Education ruling, the DC Circuit has rendered virtually
meaningless the judicial review the Supreme Court says the
Constitution guarantees. The DC Circuit allows indefinite
detention based on notoriously unreliable intelligence
reports, to which it accords a "presumption of regularity,"
while denying the detainee an opportunity to confront or
rebut them. It upholds indefinite detention based on a mere
"preponderance of evidence," and several judges have said
they would not even require that minimal showing. As Judge
Laurence Silberman candidly stated, "I doubt any of my
colleagues will vote to grant [release] if he or she
believes that it is somewhat likely that the petitioner is
an Al Qaeda adherent or an active supporter."

DC district courts have granted habeas in more than thirty
cases, but the DC Circuit court has vacated or reversed
every order the government has appealed. The Supreme Court,
once celebrated for reintroducing the rule of law to
Guantánamo, has now rendered judicial review a charade by
repeatedly declining to intervene.

What seems to drive Congress and the courts is the desire to
eliminate any risk, no matter how remote, that a detainee
might harm us in the future. Neither Congress nor the
courts, however, seem to have any problem with the
countervailing risk, namely that we may be needlessly and
arbitrarily locking up human beings for years who pose no
threat whatsoever.

Meanwhile, despite his assessment that "the existence of
Guantánamo likely created more terrorists around the world
than it ever detained," Obama appears to have abandoned his
promise to close the prison. He vowed to veto the NDAA
because of its restrictions on his authority vis-à-vis
detention and trial of Al Qaeda suspects, but he reversed
course and signed the bill after a House-Senate conference
committee watered down some of its worst provisions. The
bill is better because of his veto threat, but it still
assures Guantánamo's continued existence.

At the same time, Obama has blocked all efforts at
accountability for the abuses committed there. Even though
the vast majority of detainees have been released,
suggesting they were not "the worst of the worst" after all,
and even though it is widely acknowledged that detainees
held there were abused and in some instances tortured, the
executive has issued no apologies. Guantánamo apparently
means never having to say we're sorry.

We used to be able to blame the Bush administration for
Guantánamo. No more. And although the executive, legislative
and judicial branches are all deeply implicated in the
ongoing injustice, we can't really lay the blame on the
government. Guantánamo is our problem as citizens. No doubt
because only foreigners are held and tried there, Americans
have consistently looked the other way, even as the world
calls for it to be closed. A 2010 CNN poll found that 60
percent of Americans favor keeping the prison there.
Guantánamo will not close until we insist that our
government heed the calls for justice that the world has
rightly made.

[David Cole, The Nation's legal affairs correspondent, is
the author, most recently, of The Torture Memos:
Rationalizing the Unthinkable (New Press).]

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