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."
Guantanamo in Illinois
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
U.S. 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 U.S. 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 U.S. 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.
Guantanamo in Afghanistan
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 U.S. Constitution,
U.S. 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.