Ten years have passed since the first prisoner arrived in Guantánamo Bay, making it the longest-standing war prison in U.S. history. Almost 800 men have passed through Guantánamo’s cells. Today, 171 men remain. Fashioned as an “island outside the law” where terrorism suspects could be detained without process and interrogated without restraint, Guantánamo has been a catastrophic failure on every front. It is long past time for this shameful episode in American history to be brought to a close.
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Guantánamo started with two false premises: that the men sent there were all terrorists picked up on the battlefield and that, as “unlawful enemy combatants,” they had no legal rights. In reality, a very small percentage of the prisoners were captured by U.S. forces; the vast majority were seized by Pakistani and Afghan militias, tribesmen, and officials, and sold to the United States for large bounties. On instructions from senior White House and Defense Department officials, the men received virtually no screening before being shipped thousands of miles to Guantánamo. The only “process” these prisoners received upon arrival in Guantánamo was coercive interrogation.
As documents secured by the ACLU demonstrate, Guantánamo became a perverse laboratory for brutal interrogation methods. Prisoners were subjected to beatings, sleep deprivation, stress positions, extreme temperatures and prolonged isolation. So inhumane was the interrogation regime that the FBI instructed agents not to participate. Within the Department of Defense, too, there were courageous objectors, but they were largely ignored.
Our nation continues to pay the price for those egregious errors. Torture is the principle reason for the astonishing fact that, more than ten years after 9/11, the alleged perpetrators of those attacks—though in U.S. custody for as many as nine years—have not been brought to justice. And it is the principle reason why federal courts were rejected in favor of military commissions with looser evidentiary standards. Even under this imbalanced system, only six Guantánamo prisoners have been convicted of crimes before a military commission. Only one prisoner has been tried in federal court, in a case that showed the strengths of our criminal justice system: after considering the evidence, the jury refused to rubber stamp the government’s case, convicting the defendant on the one charge it found justified, which still resulted in a life sentence. That case should have put to rest any unfounded fears that federal courts cannot conduct fair and safe trials for Guantánamo prisoners, just as they have in hundreds of other terrorism cases. Instead, fearmongerers spun the case as a defeat for national security. Bowing to pressure and unwilling to fight Congress’s subsequent attempts to ban the transfer of detainees to the United States for federal prosecution, the Obama administration restarted the discredited military commission trials.
The United States’ reputation as a defender of human rights has been profoundly diminished because of Guantánamo’s continued existence, damaging our ability to effect change on the world stage. Our allies have refused to share intelligence out of concern that it will be used in unfair military commissions, and will not extradite terrorism suspects if they will end up in military detention or face military trials. Perhaps most critically, military officials acknowledge that Guantánamo has been used for years as a recruiting tool by our enemies -- creating far more terrorists than it has ever held -- undermining rather than enhancing our security.
Each branch of government shares responsibility for the perpetuation of Guantánamo’s legacy.
Congress has chosen to score political points rather than secure the nation. It passed the Detainee Treatment Act, which aimed to deny prisoners their right to challenge their detention in federal court through habeas corpus, which has been recognized for centuries as an essential check on arbitrary confinement. And it has repeatedly used its power of the purse in order to prevent the release or resettlement of Guantánamo prisoners cleared for release, and to bar criminal trials of those against whom there is evidence for prosecution in federal court. In short, Congress has acted to ensure that a tragic departure from America’s history and traditions will be enshrined as a permanent fixture.
Guantánamo was not a problem of President Obama’s making, but it is now one of his choosing. On his second day in office, he pledged to close the prison within a year. But for months, the President failed to show the political commitment necessary to build congressional support or to provide a logistical plan to release Guantánamo prisoners or bring them to trial. President Obama, like President Bush before him, has also claimed the authority to detain without charge or trial terrorism suspects captured far from any theater of war. Although military commission rules have improved, President Obama’s embrace of the still-flawed commissions similarly threatens the rule of law.
Both Congress and President Obama bear responsibility for the recent passage of the 2012 National Defense Authorization Act. The Act contains a sweeping provision that applies worldwide the Guantánamo principle of indefinite military detention without charge or trial, and makes indefinite military detention a permanent part of American law for the first time in this country’s history.
Finally, the courts have refused to articulate and enforce clear limits on the executive’s detention authority. To be sure, the Supreme Court has on three occasions heard challenges to the Guantánamo regime, and on all three occasions has repudiated the excesses of the political branches. Those decisions held that Guantánamo prisoners could challenge their detention under habeas corpus, that the Geneva Conventions applied to the fight with Al Qaeda, and that the Executive Branch could not unilaterally create a military commission system with limited rights for the accused. But the Court has left unanswered two critically important questions: who is detainable, and what process are they due? It has stood by as the D.C. Circuit has effectively gutted meaningful habeas review and held that a judge has no power to enforce a decision that a Guantánamo prisoner must be released. And it let stand a ruling that people abused and tortured in Guantánamo could not sue for damages, holding they were not “persons” before the law and that the senior government officials responsible could not have known that torturing non-citizens abroad was prohibited by the Constitution.
We are now stuck in a multi-branch quagmire, where no arm of government is willing to act to end Guantánamo’s blight on our reputation and our security. All must change tack. The Supreme Court must define the scope of war-time detention, and ensure that the right to habeas corpus is a meaningful one that tests, and does not endorse, the government’s case. Congress must lift the unnecessary restrictions on transfer and release from Guantánamo, particularly for the 89 men whom our security services and military have unanimously determined should be released. And the President must show the courage of his previously-stated convictions and either prosecute the other 82 men in federal court, if there is untainted evidence against them, or set them free. Guantánamo must close.