President's Obama promise to close Guantánamo will go a long way towards ending one of the most shameful episodes in U.S. legal history. An effective closure, however, calls for reflection on some lessons to be drawn from this sad chapter of our constitutional history and for the new administration to act upon those lessons.
In October 2006, President George W. Bush signed the Military Commissions Act, whose proclaimed objective was "To authorize trial by military commission for violations of the law of war, and for other purposes." Diverting the prosecution of terrorists to "ad hoc" martial courts was and remains a mistake, widely criticized by human rights activists and legal experts. The constitutionality of these military commissions remains unclear to this day, and bypassing the federal courts has not resulted in any security gain against terrorism. Lesson #1: The Military Commissions Act is far from indispensable and should have no place in the "War on Terror."
In Brown v. Vasquez, the U.S. Supreme Court reaffirmed that "the writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action," a writ denied for too long to prisoners held at Guantánamo Bay. In June 2008, however, the Supreme Court ruled that even those prisoners unilaterally labeled as "enemy combatants" are entitled to challenge their detention through habeas corpus, a decision yet to have an impact on hundreds of Guantánamo detainees. Lesson #2: the United States has every right to detain those who pose threats to its citizens and soldiers, but they must be allowed to challenge the legality of their detention before a federal court.
Despite widespread pleas to close the Guantánamo facility, the Bush Administration has refused to do so, thus prolonging what is widely perceived as a place where human rights are abused. Lesson #3: Detainees posing a security threat may be incarcerated in maximum security prisons around the country, whereas the longer the Guantánamo Bay prison remains open, the more the U.S.' reputation and democratic principles will suffer.
In November 2008, in a military commission case against Afghan national Mohammed Jawad, Army judge Col. Stephen Henley threw out a confession extracted under torture, confirming what legal experts have held for a long time: Coerced confessions are inherently unreliable and, even if reliable, taint of illegal a judicial process that must be exemplary in every respect. Lesson #4: The government has every right to search for valuable intelligence about the intentions and tactics of suspected terrorists, but torture should never be condoned as a valid method for extracting information, not even under the excuse of self-protection or for the sake of saving a greater number of lives.
The rationale behind the "enemy combatant policy" is to incapacitate suspected terrorists by holding them indefinitely, incommunicado and without charges for the duration of the "War on Terror". Yet bypassing the most basic guarantees against arbitrary detentions affects not only the suspects but everyone else, also hurting "innocent bystanders caught in the crossfire" and ultimately undermining the morale of those who fight terrorism. Lesson #5: Granting the tremendous challenges posed by the terrorist threat, unilaterally labeling individuals as enemy combatants and detaining them indefinitely and incommunicado by executive order is not the proper way to go.
After almost eight years of enemy combatant policy, the legality of the interrogation techniques, the President's power to keep US residents indefinitely detained, and standards governing the trial of suspected terrorists remain largely unsettled. Detaining dangerous enemies is lawful and make us safer, but not at such a high cost to our democratic principles and human dignity. The abuses carried out in Guantánamo call for balancing executive discretion with a congressional scheme on preventive detention, coupled with access to legal counsel, and meaningful judicial review by federal courts.