How the Law Failed at Guantánamo
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Just five days ago, on July 11, the prison at Guantánamo Bay marked another sad and unjustifiable milestone in its long history — nineteen and a half years since it first opened on January 11, 2002.
From the beginning, Guantánamo was a project of executive overreach — of the US government, under George W. Bush, deciding, after the 9/11 attacks, that the normal rules governing the imprisonment of combatants during wartime should be swept aside. The men who arrived at Guantánamo were deprived of the protections of the Geneva Conventions, and were designated as “unlawful enemy combatants,” who, the Bush administration claimed, could be held indefinitely. For those who were to be charged with crimes, the Bush administration revived the military commission trial system, last used for German saboteurs in the Second World War, deciding that acts of terrorism — and even some actions that were a normal part of war, such as engaging in firefights — were war crimes. The result was that soldiers came to be regarded as terrorists, and alleged terrorists came to be regarded as warriors, with the former denied all notions of justice, and the latter provided only with a legal forum that was intended to lead to their execution after cursory trials.
The mess that ensued has still not been adequately addressed. Nearly two and a half years after Guantánamo opened, the Supreme Court took the unusual step of granting habeas corpus rights to wartime prisoners, having recognized that the men held had no way whatsoever to challenge the basis of their imprisonment if, as many of them claimed, they had been seized by mistake. That ruling, Rasul v. Bush, allowed lawyers into the prison, to begin preparing habeas corpus cases, but on the same day, in another ruling, Hamdi v. Rumsfeld, the Supreme Court essentially approved Guantánamo as the venue for the exercise of a parallel version of the wartime detention policies of the Geneva Conventions, ruling that prisoners could be held until the end of hostilities — an unwise move, given that the Bush administration regarded its “war on terror” as a global war that ignored geographical context, and could last for generations.
A Guantánamo Insider’s Detailed Proposal for How Joe Biden Can Finally Close the Prison
Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months. If you can help, please click on the button below to donate via PayPal.
I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.
With Joe Biden’s victory in the Presidential Election, it’s reassuring that Guantánamo is back on the radar, after four long years under Donald Trump in which time may as well have stood still.
The Just Security website has just published a powerful article, “A Path for Renewing Guantánamo Closure,” which we’re cross-posting below. It was written by Benjamin R. Farley, who served as Senior Adviser to the Special Envoy for Guantánamo Closure at the U.S. Department of State from 2013-17, and is currently a Trial Attorney and Law-of-War Counsel at the U.S. Department of Defense, Military Commissions Defense Organization, assigned to the team representing Ammar al-Baluchi, one of the five co-defendants in the 9/11 trial.
Farley explains how, of the 40 men still held, 30 can be released “simply by restoring, with slight modification, the successful GTMO closure policy process developed during the Obama administration,” although he concedes that, “[t]o finish the remaining 25 percent of the project, [he] will likely need the historically elusive support of Congress.”
Who's still at Guantánamo?
