Guantanamo prison: a stain on the Constitution?

Politics, NakedLaw, News, Opinion

“. . . I have ordered the closing of the detention center at Guantanamo Bay, and will seek swift and certain justice for captured terrorists—because living our values doesn’t make us weaker, it makes us safer and it makes us stronger.” – Barack Obama (2009, State of the Union)

The day after his first inauguration, President Obama vowed that the military prison at Guantanamo Bay would be closed within a year. Seven years later, and with less than a year left before Obama leaves office, Guantanamo threatens to become a major broken promise of his presidency. Why?

Time and again, the Obama administration has trumpeted the same excuse: Congressional inaction due to Republican obstruction is to blame. If only Congress would lift restrictions on transferring non-threatening detainees, the facility that has become synonymous with torture and injustice throughout the world would be closed.

It’s not just Congress

There is no doubt that both parties in Congress deserve substantial blame for the continuing operation of Guantanamo and for giving Obama a convenient justification for inaction. But inertia is also coming from within the executive branch, which Obama controls as president.

Both Chuck Hagel, a former Obama-administration secretary of defense, and his replacement, Ashton Carter, resisted closing Guantanamo due to fears over releasing “dangerous” detainees. Recently, Reuters uncovered a pattern of bureaucratic hurdles deliberately placed by the Pentagon to prevent detainee transfers.

Similarly, the Department of Justice has consistently used its authority to prevent the release of prisoners, even after ordered to do so by federal courts under habeas petitions. Which is strange, because out of the 107 prisoners still being held, some for over 14 years, 48 have been approved for transfer by relevant military, law enforcement, and intelligence agencies because they pose no danger or threat.

If detainees are to be held for one day longer, they should be tried immediately, not by the legal farce of military commissions, but, as the New York Times editorial board recently argued, through a “well-established system [already] in place: the U.S. federal courts.”

The (real) problem

The horrors at Guantanamo are well documented, among them solitary confinement for years on end and force-feeding in response to hunger strikes.(Tariq Ba Odah, who has spent nearly nine of his 14 years on hunger strike and stopped eating solid food in 2007, has dropped to 74 pounds.) But the feature of the Guantanamo regime that makes it such an enduring symbol of injustice is the very system of indefinite detention itself, where human beings are placed in a legal limbo, without being charged of any crimes.

Even if Congress capitulated to Obama’s request to shut down the facility and the Pentagon and DOJ stopped obstructing the transfer of prisoners, it would be something of an empty gesture: the 52 men, known as “forever prisoners,” who have never been charged with any crimes nor cleared for release, would remain POWs in an apparently endless war. Relocating these detainees to the mainland would probably make permanent some of the worst features of the Guantanamo regime by importing harmful legal principles, such as indefinite detention, into our own legal system.

Every day Guantanamo remains open reminds the world of this injustice, serving as a tool for terrorist recruitment and undermining American moral standing. Since January 11, 2002, when the prison first opened its doors, 662 men have been released or transferred to other countries. This alone should serve as an admission of a horrendous mistake.

Obama can close Guantanamo

Despite having power under current law, Obama still has not exercised his authority to close Guantanamo for the simple reason that there is insufficient political pressure. Two-thirds of the American public opposes closing the detention camp, and the fear of holding “terrorists” on the mainland continues to hold sway.

For Obama to sign an executive order closing the prison would be politically difficult but not impossible; he has taken similar action in the face of congressional inaction on issues like immigration and the minimum wage. Obama also knows that his legacy is at stake and that indefinite detention is completely at odds with the United States’ constitutional and moral commitment to due process and human rights.

While he inherited this problem from his predecessor, it is seven years past time for Obama to make the politically unpopular but morally necessary decision to close the detention facility at Guantanamo Bay for good.

The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.