Thursday, June 09, 2005

Closing down Gitmo


Apparently President Bush has not ruled out closing down the Guantanamo Bay detention center, according to Reuters. But the problems at Gitmo and the constellation of U.S. run prison camps will not be solved simply by closing down the prison camp there and transferring the prisoners elsewhere, particularly to other secret detention centers around the globe. Jimmy Carter called for closing these secret camps as well as Gitmo; that point is likely to be lost in the upcoming debate over whether to close the prison at Guantanamo. If all the Administration does is move badly treated prisoners to another secret camp where they will also be abused, it has done nothing but engage in a cynical public relations ploy.

To reform matters in a way that will gain the confidence of the world, the Administration has to hold accountable the mid and upper level people who allowed prisoner abuse at Gitmo and at other camps. And it has to make public the fact that it is making reforms, rather than simply saying repeatedly that the problem is due to a few bad apples.


Indeed, in one very important respect, transferring detainees out of GTMO would almost certainly make things wrose. One of the most important legal questions involving the detainees is whether they are protected by the Due Process Clause of the Fourteenth Amendment -- not only for the protections of that Amendment itself, but also because the Administration's view is that the prohibition on "cruel, inhuman or degrading treatment" in article 16 of the Convention Against Torture applies only in locations where the U.S. Constitution protects aliens. Although a case can be made that the Due Process Clause protects aliens anywhere in the world where they are detained by the U.S., that's a very hotly contested position, and one the courts are likely to be reluctant to embrace. The courts are much more likely to adopt the narrower holding -- as Judge Green recently did, in a decision that is currently on appeal to the D.C. Circuit -- that the Due Process Clause applies at Guantanamo, because the U.S. exercises complete jurisdiction and control over GTMO.

In other words, it is entirely possible that the law of detention and interrogation will be much more favorable to the detainees at GTMO than it will be if they are transferred to some other nation.

I am glad to see that others share my concern about calls to close down 'Gitmo.' Lets not elevate form over substance.

Silly me -- that should have been the Due Process Clause of the Fifth Amendment.

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