Cross posted from The Nation
The first twenty prisoners arrived in hoods and shackles. American officials placed them in cages, surrounded by barbed wire, at Camp X-Ray at the US Naval Base at Guantánamo Bay. That was five years ago. More than 700 people have been detained at Guantánamo since.
Camp X-Ray’s 6-by-8-foot chain-link cages have been replaced by permanent high-security cells such as those in the new $37 million state-of-the-art prison facility known as Camp 6, which was designed to reduce contact among inmates. But the Administration’s detention policy—which is ultimately destructive to US interests and to its credibility as international peacekeeper—remains unchanged. In fact, in five years, the Administration’s detention policy and related practices like “extraordinary rendition” and outsourced torture have done more to reverse 200 years of democracy than any other government act in US history.
The solution, however, is not simply to close Guantánamo, as some have proposed, but to reflect on how far off constitutional course our practices—and the warped policies on which they are based—have veered, and to establish a rights-respecting national security policy for the future.
Let’s start by stating the obvious: Guantánamo is not just a prison. It is an entirely new kind of penal institution that perfectly embodies the Administration’s new paradigm for a never-ending, ubiquitous “war on terror.”
At Guantánamo, individuals are held indefinitely as “enemy combatants,” a term that conjures images of captured enemy soldiers. In fact, the government’s own data shows that the majority of prisoners at Guantánamo never took up arms against the United States or engaged in hostile conduct toward this country. The cells at Guantánamo are full of civilians, many of whom were seized in places like Bosnia and Gambia, thousands of miles from any battlefield.
This new prison is also founded on the contradictory—and legally specious—idea that the government can detain “enemy combatants” while denying them the protections guaranteed to enemy soldiers during wartime. The White House’s decision in February 2002 to abandon the 1949 Geneva Conventions—scrupulously followed by every other American President—stripped detainees of all protections. Before long, the “gloves came off,” as a former CIA official put it, leading to the abusive interrogations documented in FBI files. These abuses soon migrated to Iraq, as officials “Gitmo-ized” detention operations at Abu Ghraib and elsewhere.
Illegal detentions at Guantánamo have been made possible by the Administration’s deliberate effort to avoid court review. A secret memo drafted by top Justice Department lawyers days before the first prisoners arrived at Guantánamo concluded that the detentions would not be subject to federal jurisdiction because Cuba technically retained “ultimate sovereignty” over the US naval base.
The Supreme Court correctly rejected this argument in Rasul v. Bush in 2004, ruling that Guantánamo detainees had the right to file habeas corpus petitions in district court. The Administration, however, has continued to block review of its detentions, supplanting court hearings with sham military “status review tribunals” that deny prisoners a chance to see the allegations against them or present evidence of their own innocence.
Guantánamo should not be viewed in isolation but as part of a larger regime fundamentally at odds with American law and values. The detention system at Guantánamo operates according to the same fundamental principles that led to Jose Padilla’s three-and-a-half-year imprisonment, without charge, in a South Carolina naval brig under conditions so horrific that Padilla may no longer be competent to stand trial.
This facility is the product of the same detention policy that animates a network of secret CIA-run prisons, or “black sites,” across the globe. These prisons have employed barbaric techniques like waterboarding, during which prisoners endure facsimile drownings, and cold cells, in which prisoners are forced to stand naked in fifty-degree cells while repeatedly doused with freezing water. It is hard to imagine anything more un-American.
The Republican-led Congress did nothing to curtail the abuses. In September 2006, lawmakers caved in to the Administration by repealing habeas corpus, the single greatest safeguard of individual liberty in our legal system. In the government’s view, this new legislation expands Guantánamo’s regime of unreviewable military detention to the mainland United States, where any of the nation’s millions of law-abiding immigrants can now be secretly imprisoned on presidential say-so. Now the 110th Congress has indicated a desire to restore habeas corpus and hold hearings on the Administration’s post-9/11 detention policies. Insuring accountability is a key first step toward meaningful reform.
As they seek to repair the damage and recast the future, America’s leaders should look beyond the last five years at Guantánamo and remember the commitment to justice that made this country great for more than two centuries. The question is not whether America should imprison terrorists. It is whether America will treat all accused persons consistently with its Constitution and values.
Jonathan Hafetz: “Gitmo Turns Five” (PDF)