Guantánamo may feel like yesterday's news -- the Supreme Court already ruled on this, right? -- but hundreds of men remain in indefinite detention at Guantánamo in circumstances every bit as bleak as before. In some ways, the situation at Guantánamo has never been worse.
Last month, The New York Times reported that the military has "clamped down decisively" on detainees in recent months, eliminating benefits for "compliant" detainees and finalizing plans to convert the entire camp into a maximum security, bricks-and-mortar prison. When I first visited Guantánamo just a year ago, our military tour guides were full of stories about communal meals and detainee basketball games; in September, the military was still pushing puff pieces about the popularity of Harry Potter novels among the detainees. No more. Now, in a depressing echo of the earliest rhetoric from Bush and Rumsfeld, the Gitmo commander wants to be sure that we remember that "they're all terrorists. They're all enemy combatants." (A previous Gitmo commander was more candid, conceding to The Wall Street Journal: "Sometimes, we just didn't get the right folks.")
There have been hopeful, even celebratory moments in the last five years. The Administration's original plan was to fashion Guantánamo quite literally as an island outside the law -- a place with no lawyers, no rights, and above all, no public scrutiny. In 2004, the Supreme Court ruled in the Rasul case that Guantánamo detainees could challenge their detention through habeas corpus petitions in U.S. courts -- a decision that opened the island to lawyers who began to bring the detainees' stories to the world. (Yesterday's Los Angeles Times includes one such story -- a harrowing first-person account of one detainee's five-year ordeal at Guantánamo.) In 2006, in the Hamdan case, the Court dealt another blow to the Administration's Gitmo plans, decisively repudiating the sham military tribunals that had been devised to provide an illusion of legal process in a lawless system. The Court made clear that the President could not unilaterally usurp the roles of the courts and Congress.
Those historic decisions will profoundly affect the ability of any future President to claim monarchical powers. But, so far, they have not brought a single detainee home. Now Congress, in enacting the disgraceful "Military Commissions Act" just prior to the mid-term elections, has purported to overrule both decisions: by eliminating habeas corpus for Gitmo detainees, and by reinstating a military commission system that will once again permit unjust prosecutions. Five years later, we're back to square one.
The struggle is far from over. The ACLU will be mobilizing to ensure that the new Congress amends the abuses of the Military Commissions Act. And, inevitably, the plight of the Gitmo detainees will return to the Supreme Court -- where, we can only hope, the Court will reaffirm that the right of habeas corpus is guaranteed by the Constitution and cannot be eliminated by Congress.
Until then, the men at Guantánamo may observe still more anniversaries of lawless detention. Their plight is our shame.