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. [my emphasis]
This is a grim legacy of the Cheney-Bush administration that Obama's administration has continued. It's an abuse and dangerous practice in itself. Indefinite detention without charges is also a situation that virtually guarantees individual abuses of the prisoners beyond their detention itself. And it creates yet another political and legal precedent for the next President Cheney to expand Executive power and abuses even more.
Greenberg talks about the emerging alternatives, which she calls a "two-prison" solution: one maximum security prison in the US, the other at Bagram Air Force Base in Afghanistan:
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. [my emphasis]
As the Constitutional scholar Barack Obama surely knows, restoring the rule of law in this area is critical. Continuing this preventive detention practice is a gaping hole in the rule of law that needs to be closed, not kept or expanded. Greenberg doesn't go into it. But I assume that a facility directly on American soil that practiced preventive detention with be problematic. If that is legal for accused terrorists against whom there is not sufficient evidence to even attempt to prosecute them, why would it not be legal for wider classes of offenders?
She says in her conclusion:
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.
Deputy Secretary of State Richard Armitage told the Pakistani Ambassador Maleeha Lodhi on 9/11/2001, "History starts today." And that's the way Cheney and Bush and Rummy approached creating a gulag system outside the rule of law. They were going to start history anew. Now they find themselves recapitulating the ABC's of justice:
We don't have time to bother with legal procedures and such niceties, The Terrorists are out to get us and we're peeing our pants with fear.
We'll stick the people we consider suspects in a gulag and figure out what to do with them later.
Later comes around, and we start having to think about: do we release them? What if they're guilty? And what if they're so angry about being abused and tortured for years that they go out and commit terrorist acts?
Why, what we need is a procedure! So lets create a new one.
Dang, our new procedure is presenting the same kinds of problems as the old one. It's hard to convince any judge even pretending to apply the law to admit evidence derived from torture. So we may have to let them go. But what if they're guilty? And what if ... etc.
Gee, we could have saved ourselves a lot of trouble and had better results in our supposed aim of targeting The Terrorists if we hadn't started all this gulag-and-torture crap to begin with. Why didn't we think about that before?
History started a long time before 9/11/2001. And trying to erase it and hoping to start over from scratch, whether it's the too-easy assumptions of a hippie commune in 1968, or the "second virginity" promoted for teenagers by fundamentalist chastity advocates, or the grim, dictatorial-minded gulag-and-torture complex of Dick Cheney is a recipe for trouble. Or disaster.
The only way to end it is to end it. And that means putting a Constitutional legal system to work in these cases.