26 April 2010 By
Karen J. Greenberg On his first day in office, President Barack Obama
promised that he would close the Bush-era prison at
Guantanamo Bay, Cuba, “as soon as practicable” and “no
later than one year from the date of this order.” The
announcement was met with relief, even joy, by those,
like me, who had opposed the very existence of
Guantanamo on the grounds that it represented a legal
black hole where the distinction between guilt and
innocence had been obliterated, respect for the rule
of law was mocked, and the rights of prisoners were
dismissed out of hand. We should have known better.
By now, it’s painfully obvious that the rejoicing,
like the president’s can-do optimism, was wildly
premature. To the dismay of many, that year milestone
passed, barely noticed, months ago. As yet there is no
sign that the notorious eight-year-old detention
facility is close to a shut down. Worse yet, there is
evidence that, when it finally is closed, it will be
replaced by two Guantanamos -- one in Illinois and the
other in Afghanistan. With that, this president will
have committed himself in a new way to the previous
president’s “long war” and the illegal principles on
which it floundered, especially the idea of
“preventive detention.” For those who have been following events at
Guantanamo for years, perhaps this should have come as
no surprise. We knew just how difficult it would be to
walk the system backwards toward extinction, as did
many of the former lawyer-critics of Guantanamo who
joined the Obama administration. The fact is: once a
distorted system has been set in stone, the only way
to correct it is to end the distortion that started
it: indefinite detention. As of today, here’s the Guantanamo situation and
its obdurate math. One hundred eighty-three detainees
remain incarcerated there. Perhaps we should call them
“remainees.” According to the estimates of the
Guantanamo Detainee Review Task Force set up by
Attorney General Eric Holder, about half of them will
be released sooner or later and returned to their
homelands or handed over to other “host” countries.
They will then join approximately 600 former
Guantanamo inmates released from custody since 2002.
Another thirty-five or so remainees will be put on
trial, according to reports on the task force’s
recommendations and, assumedly, convicted in either
civilian courts or by military commissions. For the
remaining 50 or so -- those for whom evidence
convincing enough for trial and conviction is absent,
but who are nonetheless deemed by the president to
constitute a threat to the nation -- the legal future
is dim, even if the threat assessment which keeps them
behind bars has nothing to do with normal American
legalities. Some of these long-term remainees may, in fact,
have been jihadists at the time they were rounded up.
Given the years of incarceration and the conditions
they experienced, many more of the remainees may have
been radicalized in Guantanamo itself, and might now
seek to harm the US or its citizens. In addition, half
of them originally came from Yemen, a country unstable
enough that, on return, some might indeed be recruited
by forces intent on doing the US harm. Although, in
defiance of the warnings of its right-wing critics,
the Obama administration did return six remainees to
Yemen at the end of 2009, the Christmas Day bombing
attempt by Umar Farouk Abdulmutallab only ratcheted up
concerns about possible radicalization and training
there. There have been no further transfers to Yemen
since then. So what is an administration that has made a firm
promise and encountered an obstacle-laden, politically
charged reality to do? If you take seriously the plans
that this administration has been floating, the answer
is simple: close down Guantanamo by putting in play
two other Guantanamos (lacking the poisonous name) --
one on American soil and one in Afghanistan, one
future-oriented and sure to prove problematic, the
other reeking of past disasters. At some future date, the Obama administration has
announced plans to move those Guantanamo detainees who
are neither tried nor released to the
still-to-be-refurbished Thomson Correctional Facility
in Thomson, Illinois -- “Gitmo North,” as it’s been
dubbed by Senate minority leader Mitch McConnell
(R-KY). Plans to relocate at least some detainees to a
prison in the US surfaced last summer. The idea has
since encountered Congressional resistance on the
grounds of safety and security, heightened by outsized
American fears that such prisoners have Lex Luthor-like
powers and that al-Qaeda has the capability to attack
any non-military prison holding them. The
administration, however, is still pursuing the Thomson
plan. McConnell and other Republicans may be using the
“Gitmo” label to stoke American fears of terrorism on
our soil, but they are not wrong in another sense. A
jail holding uncharged and untried remainees for the
foreseeable future -- or even a remainee who has been
tried and acquitted -- will indeed be “Gitmo,”
whatever it’s official name and whatever happens to
the prison in Cuba. In July 2009, in fact, the
strikingly un-American idea of a presidentially
imposed post-acquittal detention was first suggested
by Jeh Johnson, the current General Counsel for the
Department of Defense, as one possible fate for a
dangerous detainee whom a deluded jury (or a jury
deprived of torture-induced confessions) might free.
In this scenario, such a remainee, like those never
brought to trial, would potentially remain under lock
and key until the end of hostilities in the “long
war,” itself imagined as at least a generational
affair. In other words, what’s being proposed is the moving
of a (renamed) Guantanamo, body and soul, to the
United States. That’s already a dismal prospect, but
hardly the end of the line when it comes to post-Guantanamo
thinking for this administration. In fact, a new idea
has emerged recently. Last month, according to the Los
Angeles Times, the White House hinted that the
administration was contemplating using the already
existing prison at Bagram Air Base in Afghanistan as
yet another replacement for Guantanamo -- apparently
for housing future prisoners in what is no longer
officially termed the Global War on Terror. Were this to happen, it would be a squaring of the
circle, a strange return to the origins of it all.
Bagram was, notoriously enough, the place where, in
2001-2002, many of the prisoners who ended up at
Guantanamo were first held (and often badly
mistreated). Perhaps my mind has simply taken a
cynical turn, but I can’t help wondering whether the
administration might someday simply dump some of the
Guantanamo remainees there as well. Then, we would be
grimly back where George W. Bush’s Global War on
Terror began. The “advantage” of Bagram, of course, is
simple enough: prisoners on an American military base
in distant Afghanistan might not be subject to the
same levels of scrutiny or legal “meddling” (as the
supporters of the Guantanamo process like to term it)
as in Cuba or the United States -- all those habeas
challenges and challenges to military commissions that
have, in eight years, convicted only three detainees
(only one of whom still remains in custody), and all
those human rights concerns. There are indications that, in considering the
re-use of Bagram as a parking lot for “the worst of
the worst,” Obama administration officials remain
remarkably blind to the history they are threatening
to repeat. Evidently they don’t grasp the obvious
parallels between Guantanamo and Bagram. Nevertheless,
the language they are wielding has begun to sound
eerily familiar. Last month, for instance, a senior
Pentagon official was quoted saying that the idea of
reinvigorating Bagram as a holding facility for such
prisoners might not be the ideal solution, but was the
“least bad” choice. How similar that sounds to the
words former Secretary of Defense Donald Rumsfeld
applied to Guantanamo Bay when he announced its
opening in 2002. It was, he acknowledged almost
apologetically, the “least worst place.” If a two-prison solution were to go into effect,
that would mean President Obama had fully accepted the
Bush administration’s notion of a generational global
battlefield against terror. After all, that’s what
underlay Gitmo from the beginning and that’s what
would underlie a rejuvenated Bagram as well. In
theory, there could be a workable solution lurking
somewhere in all this murky planning, if it were
undergirded with actual legal definitions; if, in the
case of Thomson, the Illinois facility-to-be, the
prisoners placed there were first charged, tried, and
convicted; and if, in the case of Bagram, anyone
placed there was declared a prisoner of war, or given
some legally recognized status according to the laws
of war or the Geneva Conventions. But as of now, it
looks like both facilities will instead offer an
endorsement of so-called preventive detention. The administration’s disingenuousness on this point
is overwhelming. On the one hand, we are told that the
terms “war on terror” and “enemy combatants” are
history and that Guantanamo will soon join them. But
Guantanamo was never purely a place in Cuba. What made
it so wrong was the system of indefinite detention
that lay at its core and that continues to defy the
rule of law as defined by the US Constitution, US
military law, and the international conventions that
this country has signed onto. Closing Guantanamo does not simply mean emptying
the prison cells at that naval base and throwing away
the keys. It means ending the policy that has become
synonymous with Guantanamo -- of incarcerating
individuals without the need to prove their guilt, and
without a clear and recognizable process for
determining the grounds for their detention. Faced with opposition in Congress and in public
sentiment generally, the Obama administration
increasingly seems focused on ending not the
conceptual nightmare we call Guantanamo, but the
irritating problem that Guantanamo represents.
Unfortunately, as this administration will learn to
its regret, there is no closing Guantanamo if
preventive detention continues. In reality, a two-Guantanamo policy is likely to
prove an unwieldy disaster and will hardly lead the
country out of the quagmire of incarceration that the
Bush administration mired us in. In the end, that
quagmire is not legal (though the legal issues it
raises are fundamental), nor political (though it may
look that way from Capitol Hill): it’s psychological.
And there is only one way to escape from it: end once
and for all the notion of preventive detention by
placing firm and unbending confidence in our military,
our intelligence agencies, and our system of justice
to identify enemies, prosecute those whom they can,
and abide by the laws of war for prisoners of war. Perhaps it’s also time for us to accept life in a
world of imperfect security. It may sound harsh, but
not nearly as soul-defeating as the idea that not one,
but two Guantanamos, will define the American future.
-- Karen J. Greenberg, the executive director
of the Center on Law and Security at the NYU School of
Law, is the author of
The Least Worst Place, Guantanamo's First 100 Days,
among other works. Comments 💬 التعليقات |