an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I realize that this will be viewed as apostasy in some circles, but I must confess I remain very dubious of the increasingly frequent calls to close the base at Guantanamo.
Regularize the procedures there? Of course. Apply the laws of armed conflict, including Common Article 3 of Geneva? Yes. Implement and apply a much more tailored and specific definition of "enemy combatant"? Absolutely. Increase transparency? You bet.
But close GTMO? And do . . . what, exactly, with the detainees? Indeed, wouldn't it be better if all suspected Al Qaeda and Taliban detainees -- e.g., those at Bagram, and at "black sites" -- were transferred to GTMO, where there is more legal process and greater judicial oversight (at least as a practical matter)?
The military detention camp at Guantanamo Bay, Cuba, has become the focus of global protests against U.S. human rights violations during the war on terrorism. Images of the hooded, jumpsuited prisoners who were brought there in 2002 still pervade the world's media; so do lurid accounts by former inmates alleging abusive treatment, and reports of recent suicides and hunger strikes. Calls to close the facility and release or try its 460 foreign detainees are steadily mounting -- they come now from close allies such as Britain and Germany, from the United Nations Committee Against Torture, and from every major human rights group. Reluctantly, we have to agree: Guantanamo will have to be shuttered. But before coming to that, it's worth pointing out that the international campaign against the camp is more than a little perverse.
The illogic begins with the fact that Guantanamo now is, by far, the most comfortable and legally accountable detention facility maintained by the United States for foreign prisoners. Conditions there were crude in 2002, but since then one state-of-the art detention facility, modeled on a prison in Indiana, has been built, and a second is under construction. Guantanamo's detainees have recreation facilities and good medical care; their continued detention is reviewed once a year by military boards, and prisoners are assigned advocates to help argue their cases. Pending a decision by the Supreme Court, they are also able to appeal their detentions to U.S. federal courts, and many have U.S. civilian lawyers.
In contrast, some 500 detainees held by the United States at the Bagram prison in Afghanistan live in far harsher conditions and have fewer rights. They do not have their own advocates, and none has been able to appeal to U.S. courts. No American lawyers are available to broadcast any complaints they have about poor treatment; in fact, alarmingly little is known about what goes on inside the prison's walls. And Bagram's inmates are better off than the prisoners -- believed to number in the dozens -- held in secret CIA facilities. They have effectively disappeared, like the victims of a Third World dictatorship; they have never been registered with the International Red Cross, provided with a legal review of their cases or allowed to communicate with the outside world. From leaks to the media, we know that some have been tortured with techniques such as "waterboarding," or simulated drowning.
So the United States' treatment of its foreign detainees would improve enormously if all the prisoners it holds were transferred to Guantanamo. But -- and here is another fact ignored in the global anti-American din -- the Bush administration is already engaged in a concerted effort to close the prison or at least reduce its population to a minimum. No new prisoners have been brought there since September 2004, and scores have been transferred to their native countries. A quarter of the remaining population will be returned to Afghanistan once a new prison there is constructed and guards are trained, within the next year; a substantial number may be charged with crimes once the Supreme Court rules on the military's proposed system of justice. The remaining prisoners -- mostly from Yemen and Saudi Arabia -- haven't gone home mainly because U.S. officials worry they will be abused or released without adequate monitoring.
Some of those who demand that Guantanamo be closed insist that all its detainees either be tried or quickly freed. This is wrongheaded and, for some Europeans, hypocritical. In fighting their own wars against terrorists, Britain and other countries have relied on preventive detention to hold dangerous militants who cannot immediately be charged. The German chancellor, Angela Merkel, has publicly acknowledged that existing legal categories for detention don't necessarily address the problem of stateless extremists who may be planning major attacks but haven't yet committed a specific crime. That doesn't mean that the current system of detention in Guantanamo is acceptable. But, as we argued in a previous editorial, the United States needs a way to hold some suspects without charge for a limited period under procedures regulated by law and U.S. courts.
Once that regime is established, it will be possible to hold detainees from the war on terrorism in many U.S. prisons. In our view, Guantanamo should not be one of them, because it has become a symbol of abuses with which the United States needs to make a clean break. But the most urgent concerns of those pressing the Bush administration ought to be the closure of the CIA's secret facilities and the conversion of Bagram into an Afghan-only facility operated by the Afghan government. Foreign prisoners held by the United States, wherever they may be, should receive Red Cross visits; their detention should be governed by law, with the right of review and appeal to independent judges. Their interrogation should be conducted according to a single set of rules consistent with the Geneva Conventions and the Convention Against Torture. And they should be tried according to a system of justice that closely resembles the current court martial system.
It is the pursuit of these reforms, rather than the simple closure of Guantanamo, that ought to be the focus of those who seek to address U.S. violations of human rights.
I agree with you if procedures at Guantanamo were "regularized," the facility could continue to be used. But the sad thing is, Guantanamo in its current form has been used specifically to avoid all of this regularization. The surreal thing is the United States has always had the option of applying United States laws and judicial review at Guantanamo, but has avoided that strenuously. The continuing bad faith the government shows in treating detainees where the courts have ruled already is no cause for optimism.
I agree that it's pretty much irrellevent to the illegal treatment and abuse of the detainees. What's needed there is rigorous enforcement of the war crimes statute against the people responsible for the administratiion's criminal policies - starting with Bush, Cheney, Addington, and Yoo.
But I also think Guantanamo Bay should be returned to Cuba. The treaty is violation of the UN Charter etc.
As usual Charlie Gittings is rapid with the pertinent insights. Allow me to add a redesigned approach based upon a somewhat similar unresolvable prison matter, the detention in Krone camp of Mariel boatlifters, some of whom were former inmates before they rode the crest of the Cuban government's open door program in 1980. Some of the most difficult refugees to release were the known criminals. One program, evidently, was to connect the released known criminals with linkage to local social rehab programs in the area. I wonder if some of the Arab Americans who are involved in similar social safetynet endeavors could help acclimatize some of the Gitmo releasees. Downsizing what is occurring in Gitmo might be a forceful step toward winding down the worst of the confrontation. Krone Camp certainly was in the news a lot as many bright people tried to help the Immigration service to empty Krone of undesirable but undeportable refugees. The idea needs some reworking. While Gitmo is an occupied part of a foreign land, and even though Cuba would like to have it back in its entirety, addressing that substantial issue might detract from an effort to deal with the prisoners held there. Perhaps the US supreme court justices currently writing the majority opinion in Hamdan have a differing view of how to bring justice to Gitmo. We should know that answer very soon. ===== NOTES: Mariel boatlift genesis in Cuban history 1960-1980; written 2005 by college professor. Release of marielitos to the refugee community, see page 32 of this 7MB pdf for the discussion of the Cuban community agencies becoming involved in managing criminals released onto the streets from Krone.
Agreed, but WP does want Gitmo closed, just not RIGHT NOW. As with those who want redeployment or even straight out withdrawal in Iraq, who really thinks that is really possible?
The focus on Gitmo, and away from other prisons -- known and unknown -- is especially problematic. Consider how so much focus is on Iraq as if Afghanistan is settled. The prison situation there is sadly but par for the course.
The only decent thing to do is to close it as soon as possible. Here is why.
The original rationale for Gitmo was to have a judicially inaccessible place where they could engage in cruel interrogations.
The second one was to have something useful for scaring people into submission. "If you don't cooperate with us we will ship you to Gitmo". To that end DoD published a lot of Gitmo photos showing truly atrocious, deeply inhuman treatment.
Neither of these works any longer.
Further interrogation of these people is useless (other than providing hand-on training for US interrogation personnel FBI, DoD, CIA and their doctors). Real interrogation is done these days in secret interrogation centers - who knows where. Plus shipping more people to Gitmo is politically not possible anymore primarily because of massive international outrage.
The only purpose Gitmo seems to be serving these days is to deflect attention from those other places.
The idea suggested here of shipping people held in Gitmo to US prisons is inhuman. This is because of gratuitous abuse anybody thought to be connected with 9/11 was subjected to in local US prisons and detention centers at the hands of US civilian guards. At least Red Cross comes to Gitmo from time to time.
If deflecting attention from other places is considered essential Gitmo will have to stay open despite massing damage this does to US interest in the world.
The only truly honest way to proceed would be transfer authority over those people to some sort of international body.
Let's face it neither the US government, or its judiciary can be trusted anymore to handle this situation decently.
Marty, the Supremes have ruled that the idea that Guantanamo is US territory is legal fiction. So you’re a little behind when you say “…GTMO should be closed only when we are prepared to house all of the detainees in domestic facilities:” We underhandedly annexed it. And as I see it, that’s reason enough to leave. But it makes false the notion that Guantanamo is not domestic territory.
I read you whenever you post. I know that you have a sense of right and wrong. So I can only conclude that you are ignorant of US/Cuba relations.
It was his assessment of the behaviors of the people in the Oriente that convinced Leonard Wood that the “uncivilized” Cuban were incapable of self-governance, in spite of what our Congress thought.
This so pained Good Cubans from the East that they have built their generations in response to that very affront to their dignity. (See the Castros.)
Marty, we don’t belong there. We should vacate and abandon the place lock, stock, and barrel.
But if a moral argument is not persuasive than at the very least we close it down because it, being tainted beyond repair, rips the rug out from under our arguments against Castro’s lack of due process.