In the aftermath of the 9/11 attacks, the Bush administration crafted a legal theory and detention policy to handle accused terrorists. Nowhere was the policy more conspicuously problematic than at Guantánamo, where a total of 779 detainees were held and where today 166 remain after over ten years. The Bush administration referred to these people as the most dangerous terrorists, as “the worst of the worst,” but that was simply a lie. Of the total captured, only a little over half were even determined by the U.S. government to have committed any belligerent acts against the United States or its allies. And of course, most of those people were just soldiers, many conscripted in the Taliban, fighting against an invading army. Captured enemy soldiers are traditionally treated as prisoners of war, not vicious criminals. Only about 8 percent were labeled al Qaeda fighters. What’s more, only five percent were even captured by U.S. forces—the bulk came from Northern Alliance and Pakistani warlords who rounded up as many people as they could to hand them over for a cash reward. In short, a huge number of these people were totally innocent—on pilgrimage to conduct business or charity work. Some were children.
By 2008, almost everyone who was the least bit reasonable realized this whole thing was a great stain upon the American character and wanted it ended. The Supreme Court ruled in Boumediene v. Bush that constitutional guarantees of common law habeas corpus extended to the prison. Bush’s Defense Secretary Robert Gates and Secretary of State Condoleezza Rice were among the voices calling for closure. Seven Guantánamo prosecutors had resigned, most citing the total mockery of justice. Obama won the presidency promising to close the prison camp.
Yet he didn’t simply vow to close it, release the many who should be released, and try the few whom the government had any evidence to try on terrorism charges. He instead proposed to create a Guantánamo-like prison camp within the United States. In May 2009, standing in front of the National Archives, Obama announced a policy of “prolonged detention” to continue indefinitely holding people without traditional just cause on the basis that nothing else easy could be done.
Under Bush and in the early Obama era, the executive and then the judiciary released prisoners. The administration put a freeze on these releases. Congress also obstructed releases by passing a law barring the release of prisoners to designated enemy states, but it also passed legislation allowing Obama to make individual exceptions of prisoners in the name of national security. He has not done so. What’s more, as commander in chief, he can easily move these prisoners around and order their release as Bush set the system up in the first place. As the head of the executive branch, he also can pardon people in the criminal justice system. Are we really to believe he’s powerless here? Even PBS recognizes that much is in his control.
The last three prisoners to leave Guantánamo have left dead. The last one, Adnan Latif, committed suicide after being told he was cleared for release. He had been stuck in the dungeon for ten years, another totally innocent victim of being in the wrong place at the wrong time. Even though the Supreme Court declared that habeas extended to Guantánamo, and a lower federal court ordered his release, the administration appealed, was backed up by a higher court, and the Supreme Court refused to come to his rescue.
Latif was on a hunger strike, and was force-fed, in violation of international standards of basic human decency. Now a majority of Guantánamo’s inmates are on hunger strike, the administration has responded with force-feeding and by cutting off their water, and Obama again reiterates his supposed goal to close down the prison.
Obama’s partisans attribute his waffling to political pressure and the Republicans, but congressional Democrats were the ones to first refuse to fund the prison closure in 2009. What’s more, Obama could have won points for standing firm on this, for standing up for justice for a change, and teaching the country the importance of human rights and constitutional law. Instead, he chose to spend his political capital on his domestic economic policy.
Here’s what I think the administration should do: simply release these people. If it thinks a few of them can be prosecuted, then it should be bound by all the basic rules of civil procedure. If it thinks that the case against some of them is tainted due to torture, then it should release those people. That is a risk that comes in torturing people, and a civilized society shouldn’t tolerate holding people because they’ve been abused. It should dispense with this “terrorist nation” designation and free these people. The Bush administration detained tens of thousands in Iraq, and let them go. Whatever risk comes in letting them go cannot justify holding onto them a second longer. If the Obama administration really has trouble finding a place for them, I’d recommend buying each of them a house on Pennsylvania Avenue. The money can come from liquidated government assets or from forcing Bush and Obama administration officials to pay restitution.
America’s post-9/11 detention policy will always be remembered as one of the greatest injustices in American history. The very least that must happen now is for the injustice to end. If any of America’s enemies were torturing over a hundred people in a dungeon for a decade and concocted a shameless legal theory to justify it as the Obama administration has, it would be cited as a major human rights abuse and some would call for military intervention to depose such a tyrannical regime. It’s time for all Americans to stop tolerating these profound, unspeakable atrocities carried out in our names. Free the prisoners. Close Guantánamo. And end the nonsensical Alice-in-Wonderland legal principles and military policies that have so thoroughly twisted the American system into a wannabe impersonator of communist dictatorships.